368/2011 Sb.
The COMMUNICATION FROM the
The Constitutional Court
The plenary of the Constitutional Court in the composition of Stanislav Duchoň, Franz, Package
Vlasta Formankova, Turgut Güttler, Pavel Holländer, Ivana Janů, Vladimir
The crust, Dagmar Lastovecká (reporter judge), Jiri Mucha, Jan Musil,
Jiří Nykodým, Pavel Rychetský, Miloslav Výborný, Elisabeth Wagner, and
Michael April adopted under SP. zn. PL. ÚS-St. 33/11 on March 8. November
2011 at the design II. the Chamber of the Constitutional Court under section 23 of the Act No. 182/1993
Coll., on the Constitutional Court, in the case of a legal opinion (II). the Senate's Constitutional
Court for proceedings conducted under the SP. zn. II. CS 431/11 to constitutionally Conformal
the interpretation of section 16 of Act No. 337/1992 Coll., on administration of taxes and fees, in the
as amended, which departs from the legal opinions
The Constitutional Court made the award SP. zn. I. ÚS 1835/07 of 18 January.
11.2008 (N 196/51 SbNU 375), this opinion:
Tax management and individual partial permissions are conferred on the tax administrators in
during the tax proceedings find themselves between the public interest in the establishment and
tax collection on the one hand and the protection of the autonomous sphere of the individual to
the other side. It is the responsibility of the tax authorities in the application of the individual
procedural institutions, even when implemented, tax inspection, do
in accordance with the principle of proportionality and to minimize interference to
the specific procedural steps does not become excessive and against an individual in the
as a result of infringing on the autonomy of the individual information. For
violation of these principles and implementation powers in breach of article. 2 (2).
2 of the Charter of fundamental rights and freedoms cannot be considered without further procedure
the tax, which will launch the tax control within the meaning of section 16 of the Act.
337/1992 Coll., on administration of taxes and fees, as subsequently amended,
without specific facts substantiated suspicion that the tax entity
has not properly tax liability.
Justification
(I).
1. the constitutional complaints SP. zn. II. CS 431/11 (pending)
the complainant sought the annulment judgment, the Supreme Administrative Court and
The regional court in Pilsen for the alleged interference with the fundamental rights to the Court of
guaranteed protection of the article. paragraph 36. 1 and 2 of the Charter of fundamental rights and
freedoms ("the Charter").
2. in the case of the complainant as a tax subject was launched by the
tax audit to examine the tax base and tax within the meaning of section 16 of the
Act No. 337/1992 Coll., on administration of taxes and fees, as amended
provisions, the Protocol of 10 June 1999. 5.2006, while tax audit has not been
in the Protocol in no way justified by (material documents shows that the
the stimulus for initiating fiscal control was a significant drop in performance
the tax entity, projected in the amount of tax). 24 September. 10.2008 filed a
the complainant in the action against the decision of the tax authority, which questioned
delivery call tax administrator to discuss the results of the tax audit and
reports of tax inspection. Day 10. 8.2009 at the "expression of the applicant" raised the
the complainant [referring to the conclusions of the award SP. zn. I. ÚS 1835/07 of 18 January.
11.2008 (N 196/51 SbNU 375)] the objection of illegality made by the parties
tax control, as he at the start or in the next over was not
communicated to her the reason. The lawsuit was rejected by the regional court, since the objection
concerning the delivery has not been found to be reasonable and opposition parties
the illegality of tax inspection was considered to be applied after the deadline
pursuant to § 71 para. 2 sentences a third administrative judicial procedure, and therefore, it
a regional court. Appeal in cassation was rejected by the contested
the judgment of the Supreme Administrative Court, which is aligned with the conclusions
the regional court made in relation to the service of documents
(the complainant failed delivery challenge), in relation to the
delayed application of the objection of illegality of tax checks (this was not
the objection that the Court would have to take into account ex officio). Above the
framework of the Supreme Administrative Court said the reasons why you can believe
depart from the legal opinion expressed in the Constitutional Court, and
to refer to the judgments in no. 2 Aps 2/2009-52 and no. 8 Afs 46/2009-46.
II.
3. Finding SP. zn. I. ÚS 1835/07 of 18 January. 11.2008 (N 196/51 SbNU
375) was the judgment of the Supreme Administrative Court cancelled for failure to
the principles guaranteed by the article. 2 (2). 2 of the Charter and article. 4 of the Constitution of the United
Republic (hereinafter referred to as "the Constitution"), which has been infringed the fundamental right
the complainant guaranteed article. 11 (1) 1 of the Charter. The Constitutional Court has come to the
conclusion that, in the present case the complainant was institutional way
fixed tax (as a result of a tax audit, vexatious)
burdensome his estate, and thus ultimately to the violation of
its title, which enjoys constitutional protection under art. 11
paragraph. 1 of the Charter. If the administrative courts, to which the complainant turned to the
action, respectively. the cassation complaint, such procedure of the tax authorities
accept, continued violation of fundamental rights and stěžovatelových
Therefore, to comply with their obligation to provide protection for the rights of individuals (article.
90 of the Constitution), or of fundamental rights (article 4 of the Constitution).
4. The Constitutional Court has adopted general conclusions regarding the tax inspection
carried out within the meaning of section 16 of Act No. 337/1992 Coll., on administration of taxes and
fees, as amended, and noted that "If the
However, tax control actually be an act within the meaning of § 47 para. 2 of the Act
on administration of taxes and fees, it is necessary to bind to the existence of a clearly
the drafting of the reasons for its use. In terms of the material
the rule of law, it is necessary to insist on the requirement that the restriction or distortion
the autonomous sphere of the individual tax control was clear and in advance
the reason for the appreciable and the use of such a limitation, and such a reason
must be based on specific facts. This cannot be
generally formulated interest of the State to tax collection, which is the purpose of the law on
the administration of taxes and fees, but there must be a specific facts
a well-founded suspicion that a particular tax entity, in which the tax
review initiated, apparently their tax liability or to fulfil
fulfilled, but the extent is less than it should. It would be the realization of arbitrariness,
If the tax administrator could perform tax control at any time and
no reason for any tax subjects, respectively, in cases where
He himself considers it appropriate ".
5. the award was taken in a different position as a Judge Ivana Janů
coming in particular from the differentiation of tax inspection according to § 16 para. 1 and
vytýkacího proceedings pursuant to § 43 para. 1 of the law on administration of taxes and fees
While finding blurs the differences between the two institutions and the requirements for the
start an audit control by incorrectly on the tax audit. Tax
control is used to detect or examine the tax base or other
circumstances decisive for correct determination of the tax. The findings or
examination of the relevant circumstances, yet not at all does not mean that the tax
My suspicion about the shortening of the tax obligations; It may be a random
investigating whether tax was set correctly, or not.
A prerequisite for a tax audit is not the existence of doubts on the correct
the determination of the tax; It is only a determination or examination of whether
set correctly. Whereas the legal premise of tax
control is not the existence of doubts about the correctness of the determination of taxes, cannot be
after tax, or require that the log of the initiation of the tax
checks any doubts. The possibility of such controls is the
must be understood in the context of the general scheme of the tax proceedings
which is based on the fact that it is a tax, the tax body, who himself admits.
Therefore, it must also be entitled to the tax authorities in the tax inspection
check that the taxable person has established his own tax correctly or not.
In doing so, it should be noted that it is unrealistic to virtually every tax
the confession was immediately examined; and from this point you can no doubt
conclude that random tax audit in the public interest contributes to
the proper tax levy, and thus also to the fulfillment of the State budget revenues (§
1 of the law on administration of taxes and fees), which are financed by the needs of the
the welfare State, by which the Czech Republic as the legal and democratic State
in essence, no doubt is as follows (although explicitly in the Constitution
does not declare). In the same perspective, it is necessary to balance and "free realm
the individual "which the majority opinion correctly mentions, with" public
interested in "to the Assembly of sufficient resources necessary for redistribution
in the context of the solidarity with the socially necessary, as well as to finance
other necessary functions of the State.
III.
6. II. Chamber of the Constitutional Court with majority-Fowles in General
formulated by the conclusions adopted by the Board of appeal in case I SP. zn. (I).
TC 1835/07 and accept different opinions expressed in the opinion of the judge
Ivana Janů (referred to in point 5) II. the Senate, in the draft opinion
plenum has referred. The plenary of the Constitutional Court II. the Senate of the adoption
opinion adopted by.
7. On the question of conflict of interest on the establishment and collection of taxes and on the protection of
the autonomous sphere of the individual, the Constitutional Court expressed in its previous
the case-law, in which it deduced that the "tax management and individual component
permissions are conferred on the authorities in the course of tax proceedings find themselves between the
public interest in the establishment and collection of taxes on the one hand, and the protection of
the autonomous sphere of the individual on the other. This is a constitutional dimension
has your reflection directly in the standards of a simple law in § 2
paragraph. 1 of the tax code (Note: Act No. 337/1992 Coll., on administration of
taxes and fees) Act, according to which the tax authorities in tax management
in a way that protects the interests of the State, but in so doing shall ensure the safeguarding of the rights and
the law protected the interests of taxpayers and other persons involved
the tax proceedings. It is still the duty of tax authorities in the application of
each procedural institutions should act in accordance with the principle of
proportionality and minimize interventions to specific procedural
How to not become excessive and against an individual as a result of violating the
the right to information of the individual's autonomy. If these tax Manager
constitutional and legal constraints also does not respect, actually, is the constitutional
obligations of administrative courts that individuals have provided protection for its
the Basic Law (article 4 of the Constitution) "(e.g. find SP. zn. II. TC 703/06 of
on 21 February 2006. 4.2009 (N 92/53 SbNU 181)].
8. the tax control is modified by the Institute in the first act on the
the administration of taxes and fees, that is, by the General, who may find that their
the application of the tax in different phases of the proceedings. The Court decision
the practice of the courts in doing so, it follows that the tax audit is not a separate procedure
or a separate phase of the tax proceedings (e.g. find SP. zn. II. TC 334/02
of 13 October. 5.2003, N 63/30 SbNU 129). It is an act of the tax authorities,
or set of operations which according to § 16 para. 1 of the law on tax administration and
fees or tax Manager worker examines the tax base
or other circumstances relevant for the correct assessment of taxes for the tax
body or in a place where it's given the purpose of the inspection
the most appropriate. Tax audit is carried out to the extent strictly necessary for the
achieve the purpose under this Act. To this end, pursuant to § 2 (2). 2
the law on the administration of taxes and fees the establishment and recovery of tax so that the
tax revenues have been truncated.
9. the interpretation of the concept of a tax audit shall be in accordance with the general importance
the term control. Because in theory of administrative law indicates how the authority
public authority which identifies and assesses the performance of the obligations, possibly
the addressees of the public administration. Conceptual characters of such controls is the ability to
begin on the basis of the complaint or ex officio, the Act modified procedure
begin, the regulation of the rights and obligations of workers and controlling
controlled entities, determining penalties for breach of such
the duties, privileges, oppose the auditee
control, etc. The essential feature of such checks is mj. the possibility of its
random design, thus making for a situation where the controlling
person, by definition, does not have the (specific), that controlled
entity has failed to fulfil its obligations properly (see the judgment of the Supreme Administrative
Court No. 2 Aps 2/2009-52).
10. the tax control is therefore Institute with preventive meaning is
an integral part of the tax administration, which aims to verify the data on site
relevant for the determination of the tax liability in the correct amounts. It is one of the
the decisive legal institutions in order to achieve the objectives of the control and reduction of
tax evasion (see the explanatory memorandum to the law on the administration of taxes and fees).
11. A legitimate aim in the case of tax inspection carried out pursuant to section 16 of the
the law on the administration of taxes and fees is the public interest of the State to the proper
the establishment and collection of taxes embodied in § 2 paragraph 1. 2 of the law on tax administration and
fees. Limitation of personal sphere of the individual in the implementation of the tax
inspections by the tax is to be assessed in terms of the principle of
proportionality in any particular case, so as to eliminate the arbitrary
the procedure of the tax authorities (such as vexatious process chosen in case of sp.
Zn. I. ÚS 1835/07-see above). For such a procedure, however, cannot be made without
next consider, having regard to the purpose of the tax audit, the process by which
at the start of or during the tax audit, there is no reason to suspect
the proper non-compliance of the tax body.
The President of the Constitutional Court:
JUDr. Rychetský in r.
Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, took to the opinion of the judges of the plenum
Francis Skinner, Pavel Holländer and Elisabeth Wagner.