342/2008 Sb.
FIND
The Constitutional Court
On behalf of the United States
The Constitutional Court decided on 2 February 2005. July 2008 in plenary in the composition of Stanislav
Package, Francis Skinner, Vlasta Formankova, Turgut Güttler, Pavel
Holländer, Ivana Janů, Vladimir Crust, Dagmar Lastovecká, Jiří Mucha,
Jan Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Výborný, Eliška
April Wagner and Michael about the design of the Supreme Administrative Court on
repeal of § 64 para. 2 of Act No. 337/1992 Coll., on administration of taxes and fees,
as amended, and on the proposal to declare the unconstitutionality of section
37A paragraph 1. 1, the first sentence of the Act No. 588/1992 Coll., on value added tax
values, in the version as amended and § 105 para. 1, sentence
the third Act No. 235/2004 Coll., on value added tax, in the version in
as amended,
as follows:
I. the proposal to repeal the provisions of § 64 para. 2 of Act No. 337/1992 Coll., on the
the administration of taxes and fees, as amended, is rejected.
II. Proposal to declare the unconstitutionality of the provisions of § 37a paragraph 1. 1 sentence
the first act. No 588/1992 Coll., on value added tax, in the version as amended by
amended, and this text: "If as a result of the assessment of the
excess vratitelný overpayment, return to the payer without application to the
30 days from the assessment of excess, even in the case of the Declaration
bankruptcy. In this case, follow the specific rules ",
is rejected.
From the article. 11 of the Charter, no interpretation to infer additional protection
rights of the State as an owner (represented by an administrator in tax matters
tax), which, in the specific case under consideration, i.e.. in cases of
the renowned competitions, led to his advantage and gave him the de facto
a privileged position in relation to other creditors.
III. Proposal to declare the unconstitutionality of ust. § 105 para. the third sentence of
Act No. 235/2004 Coll., on value added tax, as amended
regulations, is dismissed.
Justification
(I).
The definition of things and a recap of the proposal
1. The Constitutional Court was served the Fifth Chamber of the Supreme Administrative
the Court, which according to the article. 95 para. 2 of the Constitution of the Czech Republic (hereinafter referred to as
"The Constitution") and § 64 para. 3 of the Act. No. 182/1993 Coll., on the Constitutional Court, in
as amended, (hereinafter referred to as the "law on the Constitutional Court") sought
repeal of section 37a of the Act No. 586/1992 Coll., on value added tax, in the
as amended, section 105 of Act No. 235/2004 Coll., on income tax from
value added tax, as amended and section 64 para. 2 of law No.
337/1992 Coll., on administration of taxes and fees, in the wording of later regulations. In
addition to the proposal dated 12.2.2008 was the original proposal (in relation to the
the provisions of § 37a Cust. No 588/1992 Coll. and section 105 of Act No.
235/2004 Coll.) amended in the sense that the applicant seeks the voicing
the unconstitutionality of the text:
1) If as a result of the assessment of excess vratitelný
the overpayment back to the payer without the request within 30 days from the assessment of excessive
the deduction, even in the event of bankruptcy. In this case, the
follow the specific rules. ^ 40a) [the provisions of § 37a paragraph 1
first sentence of the Act. No 588/1992 Coll. (sic-Editor's note.)] and
2) Declaration of bankruptcy proceedings does not cut the tax and after the Declaration of
bankruptcy is meant to be refunded the excess forward, if there is no tax
arrears incurred prior to the Declaration after the Declaration of bankruptcy.
(article 105, paragraph 1, third sentence, of the Act No. 235/2004 Coll.).
2. the applicant stated that, in the present case, the applicant (legal administrator
bankruptcy) against the defendant to the IRS filed financial
the Office of an appeal in cassation against the judgment of the regional court in Ostrava. Appeal
complaints in the contested decision by a regional court to annul the illegality
decision of the administrative authority, and the matter returned to him the further proceedings.
The illegality of the tax procedure here that excessive deduction
value added tax (calculated after the effective decision on the Declaration
bankruptcy), within the meaning of § 64 para. 2 Act No. 337/1992 Coll., Act on the administration of
taxes and fees ("ZSDP"), započetl to cover the outstanding balance on
tax on income from employment and functional benefits.
3. According to the regional court of § 14 para. 1 (b). I) Act No. 328/1991 Coll.,
on bankruptcy and settlements ("ZKV") shows that, after its publication in the
bankruptcy assets belonging to the set-off in bankruptcy is not
permissible. It is indifferent to that by offsetting receivables should be met
(and disappeared) already in the time prior to the Declaration of bankruptcy. Therefore, if a
the effect of the excess of the value added tax, shall be for the duration of
bankruptcy used to cover other tax arrears, although it would otherwise
(excluding bankruptcy) according to § 64 ZSDP and section 37a of the law No.
588/1992 Coll., on value added tax, since the right to a refund
overpaid taxes is the claim of the debtor in bankruptcy for his debtor (State)
represented by the tax administrator, and the claims of the bankrupt are (in conformity with 6
ZKV) part of the assets of the bankrupt estate. That conclusion is
does not change the fact that the borrower has a úpadcův bankrupt receivables,
they signed up or was obliged to subscribe to the bankruptcy (section 20 ZKV).
The procedure under § 64 ZSDP would for the duration of the bankruptcy had the right character
showing excessive netting (see usn. The Supreme Court of the CZECH REPUBLIC of 19 November 2002. 9.
2001, SP. zn. 29 Odo 532/2001, published in the collection of the judicial
decisions and opinions, no. 23/2002).
4. Tax Office in the cassation complaint argued in particular by law
on bankruptcy and settlement is not in relation to the law on the administration of taxes and fees
lex specialis, since that laws do not regulate the same range of legal
relationships and are not identical nature or from the perspective of the so-called. dualism of the law.
Offsetting falls within the Institute of private law (§ and § 488 580 CIVC.,
§ 358 to 364. Cust.), as well as the Act on bankruptcy and settlement.
Inadmissibility and the impossibility of a set-off is generally in section 581 of paragraph 1. 1
and 2 of his/her identity. Cust. and also in § 14 para. 1 (b). I) ZKV as one of the effects of
a declaration of bankruptcy. In tax proceedings follows the tax in accordance
with the law on the administration of taxes and fees, even if he was on the tax
entity declared bankrupt because the tax proceedings, within the meaning of
the provisions of § 40 paragraph 2. 11 the second sentence ZSDP a declaration of bankruptcy
doesn't cut it. If the tax records under § 62 ZSDP on one of the
personal accounts of overpayment of tax, the tax entity must use it
way exhaustively laid down in the provisions of § 64 para. 2 to 6 ZSDP.
The question of whether the applicant has or does not have the right to a refund of the overpayment may be
assessed only according to the standards of public service. Calculated excess deduction
cannot belong to the assets forming the estate and be included
by the administrator in bankruptcy on the inventory of the nature referred to in section 18 ZKV, because
If they were unfounded interference by a public tax
control.
In the details of the argument is the same as the conclusions of the plenum of the Supreme
Administrative Court expressed in its opinion of 29 September. 4.2004 (see
on).
II.
Legal opinion of the Supreme Administrative Court
5. The Supreme Administrative Court in any proceedings took the view that the
the provisions of § 37a Cust. No 588/1992 Coll., on value added tax, in the
as amended ("Act No. 588/1992 Coll.", or
"the law on value added tax"), the provisions of § 105 Cust. No 235/2004
Coll., on value added tax, as amended and
the provisions of § 64 para. 2 of the Act. No. 337/1992 Coll., on administration of taxes and fees,
in the wording of later regulations, which is to be used in the case, are in
contrary to the constitutional order of the Czech Republic. Therefore, the proposal on the
cancellation of these provisions, as the Court has cited the provisions of the bound
and cannot depart from them. The Court is aware of the interpretative rules
How to comment the Constitutional Court in its decision SP. zn. III. TC 41/05
of 18.1.2006 (N 19/40 SbNU 147) ^ *, but in the case of legal
the adjustment does not allow such an option, since the provisions of § 37a of the law of
the added value of expressly stipulates that if as a result of the assessment of the
excess vratitelný overpayment, return to the payer without application to the
30 days from the assessment of excess, even in the case of the Declaration
bankruptcy; Therefore, it does not return the excess forward. Similarly, in the case of
the provisions of § 64 para. 4 ZSDP, which lays down what is meant by overpayment,
or vratitelným are overpaid. The Supreme Administrative Court proposes the retention of
part of the first sentence: "if so requested by the tax debtor for repayment of overpayment,
the excess returns, if the more than $ 50. "and only the rest of the proposed
its cancellation.
6. the appellant further cited the opinion of the full Court of the Supreme Administrative
the Court adopted on 29. 4.2004 within the meaning of the provisions of § 12 para. 2, section 19
paragraph. 2 and 20 of the Act No. 150/2002 Coll., the Administrative Court, which according to the
the appellant's argument in favour of the financial results of the authority.
(In the above opinion adopted with regard to inconsistent decision-making
the practice of the administrative courts) the plenary Supreme Administrative Court submitted
an analysis of the purposes and objectives of tax management, management of bankruptcy and their
the comparison. The purpose of the tax provided for in tax management system implementation
taxpayer's rights and obligations towards the State represented
the tax administrator, whose mutual legal relationship is based on inequality.
The aim of the tax control is according to § 2 (2). 2 ZSDP establishment and recovery
taxes have not been truncated so that tax revenues. Even in tax proceedings, although
apply the principle of equality (§ 2 para. 8 ZSDP), but it applies to tax
the bodies, which have the same procedural rights by the tax and
obligations. By contrast, the purpose of the bankruptcy proceedings is the arrangement
assets of a debtor who is bankrupt and the aim is to achieve
the relative satisfaction of the creditors from the assets forming the estate.
Participants in bankruptcy proceedings are in a flat position. When overlapping
bankruptcy and tax procedure taxes Manager has a dual position,
both as a tax administrator managing the performance of the administration of the tax under the tax
the procedure declaration of bankruptcy does not cut, and as a
participant of the bankruptcy proceedings. The tax even after the Declaration of bankruptcy
does not lose its position of power in the field of public authority of public finances,
but at the same time it may be, in the case of the existence of tax arrears,
a participant in the bankruptcy proceedings, in which it has equal status with other
the parties to this proceeding.
7. in addition, the plenary has made an analysis of the Institute counting with reference to the relevant
the provisions of the tax laws, § 37a Cust. No 588/1992 Coll., section 64, § 59
paragraph. 3 (b). (e)), as well as the ZSDP § 40 paragraph 2. 11 of the same regulation. Emphasis has been
placed on the latter provision, from which it follows that the statement of the
bankruptcy proceedings does not cut the tax, a definition of tax
the overpayment, which is a special kind of excessive deduction of value added tax
the values and the way of paying taxes. If the tax authority pursuant to § 59
paragraph. 3 in relation to the ZSDP tax entity on whose property was
declared bankrupt, so the remuneration payable to the tax liability,
that means that the debt payment occurs on dani and not to offset the
the assets of the bankrupt estate within the meaning of private modifications and is not here
Thus, contrary to the provisions of § 14 para. 1 (b). I) ZKV. In that
procedural tax legislation or in another act is not provided, it would
the tax administrator could or should do in the case where the assets of the
the tax entity is declared bankrupt. Overpayment.
an excessive deduction of the value added tax, may belong to an asset
forming the estate within the meaning of § 6 ZKV (referred to in paragraph 2
of the cited provisions of the bankruptcy refers to assets belonging to the debtor in
the day of the Declaration of bankruptcy, and which took in bankruptcy) only if
vratitelný. If the tax administrator in relation to the tax entity
After he was declared bankrupt on its property, according to the provisions of § 64
ZKV, it is not contrary to the provisions of § 14 para. 1 (b). I), since the ZKV
This is not an illegal compensation. Tax receivable tax
subject to the State may be just the tax overpayment that is vratitelný '
that is,. exceeds any tax arrears.
8. According to the Supreme Administrative Court also cannot be upheld the argument that the
entitled to a refund of overpayment is the claim of the debtor in bankruptcy for his debtor,
which is the State, and that the overpayment is the property that at the date of its publication in the
bankruptcy belonged to the bankruptcy, and this view is justified
referring to the goal of bankruptcy, for which it must be in the manner specified in the
the provisions of section 27 and section 27a of the assets constituting the estate ZKV
monetize, which assumes that such property may be subject to
civil-law relations, to which the definition, however, claim the tax
the body of public tax control does not respond.
9. The plenary Supreme Administrative Court therefore is based on the legal opinion that
Institute of excess is the Institute of public law and that
the tax overpayment tax administrator shall be obliged to dispose of them in the manner specified in the
§ 64 ZSDP, IE. convert it first to the payment of tax arrears, and it
even in the case that the tax agency is bankrupt, on whose property was
declared bankrupt. Return the tax overpayment tax entity can only
provided, that this is an overpayment, i.e. vratitelný. If it is not registered
on any of his personal accounts to any outstanding balance for the tax the tax administrator,
While it is not decisive whether the arrears arose before or after the Declaration of
bankruptcy.
10. the National Chamber of the Supreme Administrative Court held that, in
the case is significant for the account of the opinion of the Constitutional Court in sentencing
Discovery III. TC 648/04 of 28 April 2004. 7.2005 (N 144/38 SbNU 135):
"Starting in the priority policy constitutionally Conformal interpretation
a simple rights, it took the Ustavní Court concluded, according to which the provisions of the
14. 1 (b). I) ZKV is special legislation, guaranteeing the
compensation inadmissible not only private but also
private and public debts. As such, he has therefore, in
the position of the special edit precedence before modifying the General, contained in the
the provisions of § 59 paragraph 1. 3 (b). (e)), section 40 para. 2 and § 64 para. 2 ZSDP.
The decision of the general courts, which referred to the correspondence of the standards of a simple
rights unless they accept this reason find themselves in conflict with the provisions of
article. 4 (4). 4 and article. 11 (1) 1 of the Charter. "
11. The Supreme Administrative Court said that, although the Act No. 588/1992 Coll., has been
already canceled, through the provisions of § 111 of Act No. 235/2004 Coll., is referred to
the provisions applied in Mr. stuff. In that context, the multiple
questions that, in the opinion of the Chamber, the Supreme Administrative Court Act
against the assumption of the constitutionality of the provisions in both bills, names preceded by and therefore
they are presented to the Constitutional Court.
12. According to the Supreme Administrative Court, it should be noted the conceptual and
the content of the various fiscal law institutes a mandatory nature
modified in the tax code-a tax overpayment according to § 64 para. 1
ZSDP.. nevratitelný-registration tax overpayment, tax overpayment
According to the provisions of paragraph 64. 4 of the Act. tax overpayment
vratitelný, an excessive deduction of the value added tax according to § 2 (2). 2
(a). j) Act No. 586/1992 Coll., on value added tax, as amended by
applicable to the present case. It is appropriate to deal with and at the
legal public right to a refund of the tax subject
vratitelného overpayment according to § 64 para. 4 of the Act, in the case of
the assessment of an excessive deduction of the value added tax according to § 37a of the law
about value added tax in connection with § 64 para. 4, in relation to the ZSDP
possible reciprocity započítávaných public debt, when
the resolution of the above mentioned legal institutions of tax law and their
content follows directly from the legislation explicitly. The importance of the above
the cited statutory provisions with regard to the definition of these legal
institutes is totally unique and different range of its interpretation
(understanding). -Differentiation between the legal institutions of the public service
tax management, identifying them in a substantively vague, in
tax laws but not in the Act on bankruptcy and settlement,
the Institute claims the tax subject-the tax administrator for the bankrupt-
the State of the ongoing public tax proceedings could not be things
a legal opinion or legal interpretation, but must be explicitly modified in
the Act. Constitutionally Conformal interpretation is created new legal retention
the fact the emergence of public entitlement to a refund of the tax subject
tax overpayment in value added tax in the overlapping of the bankruptcy and
tax control when mere assessment of excess tax
value added for the relevant tax year after the Declaration of bankruptcy
the assets of the bankrupt-taxpayers-this tax entity-bankrupt
-According to the interpretation entitled to a refund of the tax governed by public law
This tax overpayment, and that regardless of the possible emergence of a vratitelného but
and nevratitelného overpaid. Value added tax, which is the basis of
not only of indirect taxation in the Czech Republic, but also the Foundation of the entire
but the tax system is closely linked to the tax of the same type in the States
The European Union, is under this interpretation without taking into account the design of the
According to the tax legislation (Act No. 588/1992 Coll., Act No. 235/2004
Coll., the relevant directives of the European Union to such tax) understood just as
the right to deduct, regardless of your own tax liability, where the tax
value added tax is legislatively-technically constructed as the difference
input tax (deduction) and output (custom tax
obligation), which is the tax liability of the payer of the tax in question in the
a specific tax period (see section 2, paragraph 2, point c j) Cust. No 588/1992
Coll. and section 4, paragraph 4. 1 (b). n) Act No. 235/2004 Coll.).
13. Constitutional interpretation, with an emphasis on the protection of property rights
the others (in that case, bankruptcy) lenders, however, does not lead to
the removal of the unconstitutionality of the above-cited provisions of the law No.
337/1992 Coll., in particular the provisions of section 64 of the Act, and the provisions of §
37A Act No. 586/1992 Coll., on value added tax, effective 30 June 2003. 4.
2004 and paragraph 105 of Act No. 235/2004 Coll., on value added tax,
effective from 1 January 2005. 5.2004. The enactment of the tax procedure in the handling of
overpayment of tax under the tax control when overlapping with a bankruptcy
management, which was on a de facto violations of tax legislation,
Thus such action was in breach of article. 11 (1) 5 the Charter of fundamental
rights and freedoms ("the Charter"), according to which taxes and fees
store only on the basis of the law, while giving precedence to constitutionally Conformal
the interpretation of the relevant legal provisions before tax of banned
the procedure according to the provisions of § 64 et seq.. the law on the Constitutional Court,
mechanisms of removal of banned legislative provisions,
that would be offered in a given case, the Constitutional Court
SP. zn. III.-648/04 of 28 April 2004. 7.2005 announced.
14. in the context of an ongoing tax management, so there was a law
expressly to benefit one group of tax entities, and
bankrupts, i.e. tax entities, on whose property was declared
audition, against other tax entities, including those who are
the receiver of the creditor in the ongoing bankruptcy proceedings, for which, in the
the management of their tax overpayment was fully applied the above
the cited statutory provisions, but in the case of a bankrupt under carried out
tax management of these provisions on the management of tax overpayment
has not been applied for reasons of their constitutional nonconformity, because
restrict the right of ownership of the bankruptcy creditors who stand
outside of the tax of the legal relationship and are not under the control of the tax, or
persons involved in the tax proceedings. In such a procedure, the tax administrator
would be breached the principle of procedural equality of all tax entities in
under tax proceedings performed by the provided for in paragraph 2 (2). 8
ZSDP.
15. in addition to the proposal of 12 July. 2.2008, the applicant stated that since
a change in the legislation occurred as a result of the effectiveness of the Act. No 296/2007
Coll., amending Act No. 182/2006 Coll., on bankruptcy and how his
the solution (insolvency law), as amended, and some
laws in connection with its adoption, its original proposal amends the
the sense that seeks the voicing of unconstitutionality of the text:
1) If as a result of the assessment of excess vratitelný
the overpayment back to the payer without the request within 30 days from the assessment of excessive
the deduction, even in the event of bankruptcy. In this case, the
follow specific rules. ^ 40a)
(the provisions of § 37a para 1 first sentence of Act No. 588/1992 Sb.)
2) Declaration of bankruptcy proceedings does not cut the tax and after the Declaration of
bankruptcy is meant to be refunded the excess forward, if there is no tax
arrears incurred prior to the Declaration after the Declaration of bankruptcy.
(article 105, paragraph 1, third sentence, of the Act No. 235/2004 Coll.)
16. the applicant notes that the law No. 296/2007 Coll., insolvency
law (sic-Editor's note.) was the third sentence in paragraph 105 of law No.
235/2004 Coll. repealed (see the eighty-ninth, article. CIII point 5.).
The legislation, based on the same principles were contained in
the provisions of § 37a Act No. 588/1992 Coll., which despite the repeal of law No.
588/1992 Coll. continues to be applied according to the provisions of § 111 of Act No.
235/2004 Coll. in matters of neskončených. The Supreme Administrative Court is therefore
forced to remain on the implementation of its test of constitutionality, although it is aware of the
the fact that, in case the Constitutional Court submitted, pursuant to Act No.
235/2004 Coll., which was law No. 588/1992 Coll. abolished, there was no
section 105 was not followed and applied.
17. both the cited provisions, i.e.. as § 37a and § 105 express the intention to
the legislature, and that the tax entity can return, even to the debtor,
not the entire excessive deduction, but only that portion of it which remains
as vratitelný the overpayment (only this part is part of the debtor's assets),
While vratitelný the overpayment is established procedure according to the provisions of § 64
(2) of Act No. 337/1992 Coll. insolvency law (sic-Editor's note.)
was further made the change of Act No. 337/1992 Coll., on administration of taxes and
fees (see section 21, article. XXVII., point 6). New has been added.
the act incorporated the provisions of § 40a-Arrears in insolvency proceedings.
That provision, in its paragraph 1. 4 remained on the original intention
the legislature and has taken over basically the adjustment contained in the already repealed the sentence
the third section 105 of Act No. 235/2004 Coll., respectively. in the provisions of § 37a
Act No. 588/1992 Coll. Or cannot be inferred from that provision
not permitted in the case of set-off, if the tax return
the entire claimed excessive deduction, but only that part which remains as
vratitelný overpayment, i.e. the payment of other arrears.
18. therefore, the applicable legislation is Still considered to be assets of the tax
body-and even bankrupt-not the entire claimed excessive deduction on
VAT, but only the part of the excess that is vratitelným
are overpaid; for his 64 paragraph 1 shall continue to apply the findings. 2 of law No.
337/1992 Coll., the National Chamber of the Supreme Administrative Court found that
§ 40a of Act No. 337/1992 Coll., as amended, is based on the same motives
the legislature, as was the case in the provisions on the cancellation, the respectively.
voicing of unconstitutionality, the Supreme Administrative Court has filed a proposal. Design
the abolition of the provision, however, the Supreme Administrative Court in
the present case for the Court.
III.
A substantial part of the observations of the parties
19. the constitutional court proceedings in accordance with the
the provisions of section 69 of Act No. 182/1993 Coll., on the Constitutional Court, the participants
-control the Chamber of Deputies and Senate of the Parliament of the Czech Republic.
20. The Chamber of deputies of the Parliament of the United Kingdom stated in its observations,
the proposal to repeal the provisions of the law on 37a value added tax,
It lacks justification, since this law was effective from 1. 5.2005
repealed by law No. 235/2004 Coll., on value added tax.
The legislature in approving the design of the contested provisions was based on the
the fact that tax control is the realization of the rights and obligations of the entity tax
to the State that is represented by the tax administrator. Their mutual
modified the provisions on the relationship, the tax proceedings, aiming at the selection of the tax
so, in order to avoid truncated State revenues, is based on inequality.
An excessive deduction of the value added tax in the event, when it will exceed the
deduct tax at the outlet, is conceived as a payment of tax, which is
the tax administrator used to cover tax obligations under section 59 paragraph 1. 3
the law on the administration of taxes and fees, or to pay for any outstanding balance on
other tax or, under certain conditions, for different tax administration.
If a tax entity pursuant to § 64 para. 4 of the Act
overpayment, i.e. vratitelný. then, if he does not, for the same tax administration
outstanding balance on other tax or any other tax does not request
the payment of taxes, are entitled to a refund of the excess vratitelného. Condition
vratitelnosti was the amendment of the value added tax no. 17/2000
SB. also in relation to the bankruptcy proceedings. The new Act No. 235/2004
Coll., on value added tax, in § 105 adaptation return
excess took over from Act No. 588/1992 Coll. in the explanatory memorandum
a draft law is stated: "as well as the current version of the Act is to
refund of excess tied to the emergence of the overpayment, vratitelného
the payer originates in the case that has no arrears on taxes. To
provisions, the following provisions taken from the Act on administration of taxes and
the charges, that the Declaration of bankruptcy proceedings does not cut the tax. If
a vratitelný the overpayment by changing the tax liability on the basis of
an additional assessment, the payer must ask for refund of overpaid and the administrator
taxes shall proceed according to the provisions of the legislation that governs the
tax administration. "
The legislature acted in the belief that adopted laws are in accordance
with the Constitution and with our legal order and leaves it to the Constitutional Court, in order to
assess its constitutionality and issued the appropriate decision.
21. the Senate of the Parliament of the Czech Republic in its observations on the draft stated that the
provisions 37a Cust. No. 586/1992 Coll. (sic-Editor's Note: the Bill correctly.
No 588/1992 Sb.) It was incorporated into the law on value added tax
Act No. 285/1994 Coll. (sic-Editor's Note: properly by law No. 258/1994
Coll.), amending and supplementing Act of the Czech National Council No. 588/1992
SB. ' about the value added tax, as amended; the provisions of the
true to 30. April 2004, when it was abolished along with the whole of the law. In
during the Act (sic-Editor's note.) No 588/1992 was amended § 37a
Act No. 133/1995 Coll. and Act No. 17/2000 Coll. was involved in Senate
on the approval of only the last cited the amendment and consequently cannot be
the observations support the arguments of the debate as yet based on this law in
bodies of the Chamber. The draft law No. 17/2000 Coll., contained in the Senate's printing
# 141, the plenary discussed the Senate on its 15. meeting on 12 June 2006. l. 2002 (sic
-Note. Red.), and to a point that contains the adjustment provisions of § 37a
the law on value added tax, none of the senators, and can be
thus conclude that the Senate might consider in terms of the constitutional provisions for the
problematic.
22. Also when discussing the Act No. 235/2004 Coll., on value added tax
values, to the provisions of § 105 Senators missed any of the chatters
and the plenary its resolution No. 381, as amended by the draft law was approved by the
transferred the Chamber of Deputies. Of course discussing it can be concluded,
the Senate also might consider this provision for constitutionally-conformist.
23. The provisions of § 64 para. 2, the amendment was only ZSDP once and
Act No. 255/1994 Coll., amending and supplementing Act of the Czech national
Council No. 337/1992 Coll., on administration of taxes and fees, as amended
legislation, namely the provision, which was approved before
konstituováním Chamber, and therefore cannot substantiate argument representation
as yet based out of debate to this Act in the bodies of the Chamber.
24. The provisions of § 37a Cust. No 588/1992 Coll., as was the entire
law, repealed the Act. No. 235/2004 Coll., with effect from 1. 5.2004, from
for these reasons, it can be assumed that with the design Ustavní the Court disposed of in
accordance with the provisions of section 67 para. 1 of the law on the Constitutional Court. In addition, you can
noted that, in a situation where in the past the Court has already Ustavní
multiple times to pronounce (and even the validity of Act No. 17/2000 Coll.) that is
each, whether it is vratitelný or nevratitelný overpayment of
value added, or if there is an overpayment incurred prior to the Declaration, or
After the Declaration of bankruptcy, because it considers the provisions of § 14 para. 1 (b). I)
the Act on bankruptcy and settlement at a special adjustment to the contested
provisions, there would be no annulment of the provisions applicable, even if the
the contested provision was valid because it can be to its constitutionally
konformnímu interpretation. The provisions of § 105 Cust. No. 235/2004 Coll., the highest
the Administrative Court in this particular case (cassation complaint) applies,
and therefore, the question arises as to whether the proposal to repeal this provision meets the
the terms of the provisions of § 64 para. 3 of the law on the Constitutional Court, however, in particular,
whether it satisfies the requirements of article also. 95 para. 2 of the Constitution.
25. in any assessment of the application for revocation of this provision in
the future would have to be taken into account that the provisions of section 105 of Act No.
235/2004 Coll. no longer explicitly, as opposed to legal status applicable to
30.4. 2004, contains basically the exception from the Bankruptcy Act
the settlement, and that it could be classified as so called. indirect amendment to
the Act on bankruptcy and settlement, and the provisions of § 14 para. 1 (b).
I). It would then be on the assessment of the Constitutional Court whether this exception,
which ensures the State "more demanding" to satisfy his debts before
the other lenders involved in the bankruptcy, even justifiable and whether
does not populate the characters not permitted inequality. Amendment to the Bankruptcy Act
the settlement, made by law No 27/2000 Coll. and effective from 1 January 2005. 5.2000,
Although the legislature gave made it clear that the State will no longer be privilegovat
regarding his claims against the úpadcům, with a privileged position
It took almost a decade and the State concerned is not only the claims of tax
(went further on the charges, duties and social security contributions, if
incurred by not more than three years before the Declaration of bankruptcy and in the course of
bankruptcy), but the adoption of the new law on value added tax as
This position would be reviewed, and agreed together with the new law, that in the
If an excessive deduction of value added tax to the State with the
other creditors "divide". The assessment of this question, however, with regard to the
that particular case seems premature, even though new claims and complaints
as a result of the application of the provisions of § 105 you can with a high probability
expect. In the case of the valid provisions of § 64 para. 2 you can regarding ZSDP
the objection of the plaintiff, that when you use the constitutionally consistent interpretation in
the meaning of the findings of the Constitutional Court an infringement of tax legislation, and the
a breach of the article. 11 (1) 5 of the Charter, to point out once again on the existing
the case-law of the Constitutional Court, from which the clear conclusion that
the provisions of § 14 para. And (b). I) represents to the provisions of § ZKV 37a
Act No. 588/1992 Coll. and by extension, to the provisions of § 64 para. 2 ZSDP,
a special law, i.e., a provision that can't be with these
the provisions in breach of.
26. the applicant further argues that the rejection of the appeal complaint
causes of unequal status of taxpayers in tax proceedings and the violation of
the principles expressed in the provisions of § 2 (2). 8 ZSDP. The unconstitutionality of sees
in fact, that in rejecting the appeal of a complaint, the tax office does not
apply to the payer of value added tax-the effect of the provisions of § 64
paragraph. 2 ZSDP, while to other payers-"neúpadcům"
the provisions will apply. It is obvious that not only the rule explicitly
expressed in section 2 (2). 8 ZSDP, but also the process itself
the institutes should in tax proceedings should ensure equal status of tax
bodies, in particular with regard to the article. 37 para. 3 of the Charter, even if its
violation of the petitioner does not raise. According to the article. 37 para. 3 of the Charter are
all interested parties are equal. In this context, it is necessary to think about
over the nature of the provisions of § 64 para. 2 ZSDP the cessation of tax administrators
apply the overpayment to the payment of other taxes and as a result of this payment
then, the obligation to pay the tax ceases to exist. The Constitutional Court in its earlier
the findings, made it clear that it considers the provisions of § 64 para. 2 ZSDP, on
contrary to the opinion of the Supreme Administrative Court has issued, for
the provisions containing the obligation of the tax to offset an overpayment,
Although formally speaking only in the provisions on the payment of the "outstanding balance", and
This is because it occurs to the extinction of the obligation to pay, as well as for set-off
under the provisions of section 580 of his/her identity. Cust. However, the Institute is itself a set-off
substantive law, which at least partially retains these elements in
the case, which is set out in the procedural regulation, as it is essentially a
"Act", by which the tax administrator's perspective your claim as well as
When the set-off under the civil code. It is up to the Constitutional Court, in order to
assess whether the applicant cited inequality in terms of these
arguments for justifiable specificity position of bankrupts in bankruptcy
the proceedings and whether the intensity of this inequality to tax bodies-
"neúpadcům" does not exceed the limit necessary, and is adequate to the situation.
IV.
The diction of the contested provisions
The provisions of § 64 para. 2 ZSDP
The excess will be used to pay any outstanding balance for other taxes or,
If there is no such thing as a down payment on your outstanding balance, yet the tax nesplatnou
tax obligation, for which the overpayment arose. Tax overpayment is
also apply to the payment of the tax arrears of the debtor in the same tax
another tax arrears for which it is registered, if requested by that
This tax so that this request is out of the tax administration, for which the
registered tax overpayment, before returning it, but not later than
the day of the period of entitlement to the refund. The request shall be accompanied an enforceable
statement of arrears, overpayment to be recovered; If you will be
the requirement applied through linked automated
tax information systems, just submit an enforceable statement
arrears in addition to the 10 days of the application requesting reimbursement
the arrears. Request cannot be accepted if there is at the time of his
the application of vratitelný the overpayment. Payment of tax arrears that registered
for the tax, for which it is registered and the tax overpayment, takes precedence. About
convert the overcharged to cover the outstanding balance for other taxes the tax debtor
notify. The payment of the outstanding balance per day is considered to be the day that
following the date of overpayment.
The provisions of § 37a Cust. No 588/1992 Coll.
paragraph. 1, first sentence
If as a result of the assessment of excess vratitelný
the overpayment back to the payer without the request within 30 days from the assessment of excessive
the deduction, even in the event of bankruptcy.
The provisions of § 105 Cust. No. 235/2004 Coll.
paragraph. 1, third sentence
A declaration of bankruptcy, the tax proceedings does not cut, and after the Declaration of
bankruptcy is meant to be refunded the excess forward, if there is no tax
arrears incurred prior to the Declaration after the Declaration of bankruptcy.
Provisions related to the present problems of the
§ 111 paragraph. 1 the Act. No. 235/2004 Coll.
For the application of the value added tax for the period prior to the date of acquisition
the effectiveness of this law, as well as for the assertion of rights with
related, the existing legislation.
§ 14 para. 1 (b). I) ZKV
Bankruptcy has these
effects: the property belonging to the netting into the substance is not permitted; This is
does not apply to the final settlement by a special legal regulation
governing business on the capital market
§ 33 para. 3 ZKV
To pay for the claims of bankruptcy creditors cannot use resources, with
which is possible by a special Act deal only specified way
In the.
The assessment of laws in terms of their acceptance and release of the constitutionally prescribed
way
27. The Constitutional Court, in accordance with the provisions of § 68 para. 2 of the Act on the constitutional
the court first assess whether the law, which is raised the unconstitutionality of
the contested provisions, were adopted and issued within the limits of the Constitution laid down
competency and constitutionally prescribed way.
28. The provisions of § 37a Act No. 588/1992 Coll., on value added tax,
as amended by Act No. 17/2000 Coll. was adopted 7. on 19 December 1999.
a meeting of the Chamber of deputies of the Parliament of the United Kingdom, when for him from
188 present deputies voted 118 and 65 were against. Act No.
235/2004 Coll., on value added tax, which set aside the Act No. 588/1992
Coll., has been approved by the Chamber of deputies in the third reading on 26 April. 2.2004
on the 27th. meeting, when the present 187 members of Parliament for voted 94
and 93 against. President of the Republic, the law has not signed and returned to
The House of representatives, which voted on its 30. meeting on 22 November. 4.
2004. From the present 184 votes for, 101 against, was 83.
The provisions of § 64 para. 2 ZSDP was adopted by Act No. 255/1994 Coll.
that the Chamber of Deputies approved the 8. 12.1994 on its 25. meeting, when
108 members of Parliament voted for the law, 38 against and 16 abstentions.
29. The Constitutional Court notes that the laws containing the contested provisions
have been received and issued within the limits of the Constitution laid down the competence and constitutionally
in the prescribed manner.
Vi.
Assessment of the competence of the Constitutional Court for consideration of the proposal, and the active
the evidence of the claimant
30. the Constitutional Court also assessed whether the petitioner is according to art. 95 para.
2 of the Constitution and the provisions of § 64 para. 3 of the law on the Constitutional Court authorized to
the request for the cancellation of the above provisions.
31. The Constitutional Court notes that, as is clear from the above
explicit communication to the applicant, the provisions of § 105 Cust. No. 235/2004 Coll.
in the present case it has not been applied, because of the provisions of § 111
of that law implies that for the application of the value added tax for the
the period before the date of entry into force of this law, as well as for the application of
related rights, the existing legislation, i.e.. in
the present case, the provisions of § 37a Cust. No 588/1992 Coll.
32. Given the procedural situation, therefore, the Supreme Administrative Court as the
the appellant is not entitled to bring an action for annulment of the vote, respectively.
neústavnosti the provisions of § 105 of Act No. 235/2004 Coll., as this
the provisions of the law is not to be decided by it when the solution matters
used, and the Constitutional Court is not entitled to in connection with the present
the proposal is related to its constitutional authoritatively conformity.
33. the Constitutional Court further findings, whether it can undertake a
to discuss the application for annulment or give the provisions of § neústavnosti
37A Cust. No 588/1992 Coll., which was (as the whole law) with effect from
1.5. 2004 repealed by Act No. 235/2004 Coll.
34. The Constitutional Court, in connection with this issue refers to the finding
SP. zn. PL. ÚS 38/06 dated 6.2.2007, promulgated under Act No. 84/2007 Coll.
[follow up to find SP. zn. PL. ÚS 33/2000 of 10.1.2001 (N 5/21
SbNU 29; 78/2001 Coll.) and similarly find SP. zn. PL. ÚS 73/06 dated
29/1, promulgated under no. 291/2008 Coll.)], in which the question raised
Therefore the legal opinion, according to which the Constitutional Court pursuant to article. 95 para.
2 of the Constitution, the constitutionality of the contested competent to examine the merits
provisions, even though it was already cancelled (changed), and under the condition that
addressee of the tempered because of the unconstitutionality of public power and is not
entity governed by private law. Whereas, in the case in question is the addressee of the
tempered because of the unconstitutionality of the public authorities, in the context of
the legal opinion expressed in the cited case SP. zn. PL. ÚS 38/06
the conditions for the substance of the projednatelnost application.
35. In the rest of the proposal, therefore, can be considered the Supreme Administrative Court
authorized claimant within the meaning of article. 95 para. 2 of the Constitution.
VII.
The existing case law of the Constitutional Court relating to the assessed
the issue of
36. Regarding the issue of the Constitutional Court already dealt with in my
previous findings, for example. SP. zn. I. ÚS 544/02 of 7.4.2005 (N
76/37 SbNU 75), i. ÚS 713/05 of 18.1.2006 (N 17/40 SbNU 135), II.
TC 35/05 dated 20.12.2005 (N 232/39 SbNU 457), III. TC 648/04 dated
28.7.2005 (N 144/38 SbNU 135), III. TC 41/05 of 18.1.2006 (N 19/40
SbNU 147), III. TC 207/05 of 23.2.2006 (N 46/40 SbNU 383), i. ÚS
544/02 of 7.4.2005 (N 76/37 SbNU 75), III. TC 38/05 dated
29.9.2005 (N 184/38 SbNU 511), III. TC 24/05 dated 24.11.2005 (N
212/39 SbNU 255), IV. TC 550/05 dated 14th September 2006 (N 163/42 SbNU 345),
IV. TC 408/05 dated 31 July 2006 (N 144/42 SbNU 177).
A detailed interpretation has been administered in particular (even the plaintiff cited) award
SP. zn. III. TC 648/04 of 28 April 2004. 7.2005), the conclusions mentioned here
are fully applicable to the case of the present Chief Administrative
the Court, in respect of which was submitted to the motion of neústavnosti
the relevant provisions and to repeal the provisions of § 64 para. 2 ZSDP.
37. in that decision, the Constitutional Court assessed the challenged decision
General courts (including the opinion of the Supreme Administrative Court of 29 June.
4.2004), which was based on the legal opinion that the Institute of the excessive
the deduction is the Institute of public law and the tax overpayment is administrator
taxes required to load up in the manner specified in the provisions of § 64 para. 4 ZSDP,
i.e.. convert it first to the payment of tax arrears, even in
If the tax body is bankrupt, on whose property was declared
the audition. The Constitutional Court has been known to even divergent opinion on the six judges
The Supreme Administrative Court, according to which, in short, of the legal
Edit: "I have an outstanding balance arising from tax by declaring bankruptcy
can be satisfied only by a final resolution rozvrhového. Ii. Tax
outstanding balance following the Declaration of bankruptcy has the nature of the claim for
the essence and it can meet at any time in the course of bankruptcy; Iii. Tax
the overpayment after the Declaration of bankruptcy cannot be used to pay for the other tax
arrears of the debtor in bankruptcy, which the tax administrator signed up or had a login to
bankruptcy. Procedure in accordance with the provisions of § 64 ZSDP would for the duration of the bankruptcy has been
excessive offsetting. "
In finding SP. zn. III. TC 648/2004, the Constitutional Court, inter alia, stated:
38. The provision of section 59 paragraph 1. 3 (b). (e)) and the provisions of § 64 para. 2 of the law on
the administration of taxes and fees in relation to the provisions of § 37a paragraph 1. 1, 3. No.
588/1992 Coll., represents a special adjustment to General before editing
precedence. In other words, before the general duty of the tax return
tax payer vratitelný overpayment generated as a result of the assessment of the
an excessive deduction of the value added tax, has precedence over the permissions
the tax administrator to use such an overpayment, to pay any outstanding balance
the same tax payer in other taxes. If then the provisions of § 40 paragraph 2. 11
the law on the administration of taxes and fees that the Declaration of bankruptcy, the tax
management does not cut, it is linked with that of its dual maybe interpretation:
39. According to the first interpretation of the bankruptcy not showing up at all on
relationship hinted at by the provision of section 59 paragraph 1. 3 (b). (e)) and § 64 para. 2 of the Act
on administration of taxes and fees to the provisions of § 37a paragraph 1. 1, 3. No 588/1992
Coll., on value added tax, as amended, i.e..
bankruptcy is not an obstacle to the set-off of the overpayment on vratitelného
another tax due. On this interpretation follows one of the interpretative
alternatives the provisions of § 33 para. 3 ZKV, under which payment of claims
bankruptcy creditors cannot use the resources with which it is possible according to the
a special law to deal only with the prescribed manner, in such a
considers the procedure under section 59 paragraph 1. 3 (b). (e)) and § 64 para. 2 of the law on
the administration of taxes and fees. It also follows the interpretation of the term set-off
According to the provisions of § 14 para. 1 (b). I), limiting its range ZKV only
on the private law claims.
40. According to the interpretation of the second continuation of the tax proceedings after the Declaration
bankruptcy is limited to other aspects than the possible credit tax
overpayment to another tax debt. This interpretation is based on a Variant
the provisions of this regulation. 1 (b). I) ZKV, or his interpretation, according to which the
the concept of the inadmissibility of the set-off of the assets belonging to the essence of includes
how private and public debts. It is based also on
the interpretation of the provisions of § 33 para. 3 ZKV, that within the framework of a special
the statutory method of disposition of resources, which avoids the possibility of
use them to pay for the claims of creditors, bankruptcy does not include
Administrator permissions on the vratitelných tax overpayments of VAT
pay your outstanding balance for the tax values of the other.
41. The Constitutional Court is therefore dealt with the question of the legal concept of netting,
that is the concept of private law and public law, and stated that the
Neither of the previous decision of the Constitutional Court cannot be inferred generalization
regarding the exclusion of netting for private and
public claims. Assessment of the admissibility of such a set-off
depends on the particular pozitivněprávní edit.
42. When assessing whether the provisions of § 14 para. 1 (b). I) ZKV is
specific legislation guaranteeing compensation inadmissible not only
private law, but also private and public
claims, or not, was based on the Constitutional Court of policy priorities
special legal treatment before the General to which it expressed in many of their
findings (see e.g. findings SP. zn. PL. ÚS 41/02 dated 28.1.2004 (N 10/32
SbNU 61; 98/2004 Coll.), III. TC 132/04 dated published: 29.6.2004 (N 88/33 SbNU
347), II. TC 133/04) of 23.9.2004 (N 136/31 SbNU 381) and, in this
respect and reflect the relevant opinions of the doktrinární: "Arises when the
the conflict between the General and the specific rule, it can be presumed that
the legislature, through a special Act wanted to from the General
the rules diverge. " (Ch. Perelman, An Abbreviation For Juridique. Paris 1976, emotion.
According to the German translation: Juristische Logik als Argumentationslehre.
Freiburg-München 1979, p. 65). In case of conflict the two modifications
the simple rights of the same degree of legal force, which are not in the nota bene
relationship of inclusion, but a overlaps, you determine that is by editing the
General and special given the subject of the proceedings (which is defined by
procedural proposal). General legislation is, therefore, that from the perspective of law
a simple, prima facie, the proposal defined the subject it regulates. In
the present case is that the subject of the management of transfer tax overpayment
value added tax on the payment of tax arrears, or edit
the General is determined by the provisions of section 59 paragraph 1. 3 (b). (e)), section 40 para. 11 and
§ 64 para. 2 of the law on the administration of taxes and fees. By modifying the special, which
has a general precedence, then the provisions of § 14 para. 1 (b). I) ZKV.
43. In that the award was made very detailed analysis
individual interpretation of the relevant law of simple alternatives
point of view of the constitutionality of their interpretation and application. The Constitutional Court, which
It was based on the principle of the priority of constitutionally Conformal interpretation of a simple
rights, came to the conclusion, according to which the provisions of § 14 para. 1 (b). I) ZKV
is a special legal regulation, guaranteeing compensation inadmissible
not only private, but also private and public
claims. As such, it is therefore in the position of a special edit precedence
before you edit the General provisions contained in section 59 paragraph 1. 3 (b). e), §
40 para. 11 and § 64 para. 2 ZSDP. The decision of the general courts, which
referred to a simple rights standards do not accept correspondence, find themselves
for this reason, contrary to the provisions of the article. 4 (4). 4 and article. 11 (1) 1
Of the Charter.
44. the Constitutional Court emphasized that the right of ownership, such as the right of the base,
that is a must have when considering the problem in mind, is protected
Article 11 of the Charter. In accordance with its paragraph 1, first and second sentences, each
right to own property and the right of ownership of all owners has the same
legal content and protection. From the constitutional standards no interpretation
You cannot infer improved protection of the rights of the State as owner, which in
tax matters represents a tax administrator. The interpretation adopted by the administrative
However, in the present case by the courts, in effect, the State administrator, respectively.
taxes compared to other owners-in the cases announced bankruptcy in
eligible as bankruptcy creditors-favors and de facto he
grants a privileged position.
VIII.
The assessment of the constitutionality of the contested provisions
45. The essence of the design of the Supreme Administrative Court is the proposition that constitutionally
interpretation the contested provisions with an emphasis on the protection of
proprietary rights of bankruptcy creditors does not lead to the removal of their
unconstitutionality. In the opinion of the appellant was not in the constitutional
Court SP. zn. III. TC 648/04 of 28 April 2004. 7.2005 stated preference
interpretation of the banned constitutionally compliant tax
legal provisions before the procedure according to the provisions of § 64 et seq.. the law on the
The Constitutional Court. The Supreme Administrative Court argues that the procedure of the tax authorities
would be breached the principle of procedural equality of all tax entities in
under tax proceedings performed by the provided for in paragraph 2 (2). 8
ZSDP, since there was a law specifically to benefit
one group of tax subjects, bankrupts, which because of
constitutional provisions was challenged nonconformity, compared
other tax entities, which would be in the handling of their tax
overpayment cited legal provisions have been fully applied.
46. With regard to the objections put forward by the applicant, therefore, the Constitutional Court
focused on the assessment of related issues, i.e.. the question of the primacy of constitutional
souladného interpretation and application of the provisions before their abolition,
on the assessment of the constitutionality of the contested provisions and self assessment
equality of tax subjects provided interpretation and application
in accordance with the contested provisions contradict the Constitutional Court.
47. the lack of clarification of objection regarding the preference for the constitutionally
Conformal interpretation of the relevant provisions prior to the procedure laid down in
the provisions of § 64 et seq.. the law on the Constitutional Court, the Constitutional Court of first
He points out that finding SP. zn. III. TC 648/04 it was decided to
constitutional complaints against a particular decision, which has not been
associated with a proposal to repeal the law, and (III). the Senate
did not, having regard to the principle of the priority of constitutionally Conformal interpretation
a simple law, reason to proceed according to the provisions of § 64 para. 1 (b).
(c)) of the Act on the Constitutional Court.
48. Moreover, in this context, the Constitutional Court emphasises that, in its
previous publicly available and commonly known case-law many times
He stressed that the principle of consistent interpretation of the law is constitutionally or its
individual provisions or other legislation takes precedence over the
prior to its cancellation, and that it is the duty of all public authorities
interpret and apply the law with respect to the requirement of the protection of
fundamental rights and freedoms. In a situation in which certain provisions of the legal
the regulation allows two different interpretations, and one of these is in
accordance with the constitutional laws and international treaties to which the Czech
Republic, and another does not, the reason for the cancellation is not given such a
provisions. When its application is the responsibility of all public authorities
to interpret the provision constitutionally Conformal manner (cf. for example.
find SP. zn. PL. ÚS 5/96, collection of findings and resolutions of the Constitutional Court
The United States, volume 6, finding no 98, promulgated under Act No. 286/1996 Coll.,
or find pl. TC 48/95, collection of findings and resolutions of the Constitutional Court of the Czech
Republic, volume 5, finding no 21, promulgated under Act No. 121/1996 Coll., finding
PL. ÚS 44/03, a collection of findings and resolutions of the Constitutional Court of the Czech Republic
Volume 37, no. 73, pp. 33, promulgated under no. 251/2005 Coll.). In
the latter referred to the decision of the Constitutional Court also stated that in
a democratic legal State which is seen primarily as a material
the rule of law, cannot accept the use of valid legal provisions
in a manner which is contrary to some of the fundamental constitutional principles.
The obligation of the courts to find the right to not only search for direct,
specific and explicit instructions in the legal text, but also the obligation to
identify and articulate, what is the specific law, even where it is the
the interpretation of abstract standards, the constitutional principles, the provisions of the Charter
fundamental rights and freedoms and the obligations arising from international agreements. From
many conceivable interpretations of the law, it is therefore necessary in any case to use
only such an interpretation that respects the constitutional principles (if such a
the interpretation of the possible), and to repeal provisions of the Act for unconstitutionality
proceed only if the provision in question cannot be used without
was the constitutionality of the violated the principle of minimizing the interference (the powers of the
other public authorities).
49. The objection regarding the lack of clarification of the preference for the constitutionally
Conformal interpretation applied in the present proposal is therefore now,
In addition, in situations where the provisions of § 37a Act No. 588/1992 Coll. has been
canceled when the unconstitutionality of the provisions (without following the
the Act on bankruptcy and settlement), nor is it alleged, and according to the addition to the proposal
the appellant is no longer relies of annulling the contested provisions, completely
irrelevant.
50. As is clear from the proposal, the Fifth Chamber of the Supreme Administrative Court is
convinced that cannot in that the legal matter in dispute to the tax office
against the administrators of the bankrupt may decide, as
deciding on the appeal of a complaint would have had to use the contested provisions,
which finds in this situation neústavními and subsequently seeks vote
unconstitutionality of their text from the Constitutional Court.
51. the Constitutional Court must also be recalled that in the judgment in SP. zn. 2 Afs
180/2004-44 the Supreme Administrative Court held that, regardless of the internal
the Supreme Administrative Court's conviction of the rightness of a preview,
It will be in other decision-making activities respect the legal opinion of the constitutional
the Court. To binding effect to the findings of the Constitutional Court within the meaning of article 87(1). 89 para.
2 of the Constitution, the Constitutional Court held in detail already in the finding in the matter of SP. zn.
IV. the TC 301/05 (in the collection of the findings and resolutions of the Constitutional Court has not yet
nepublikován, in electronic format, see http://nalus.usoud.cz) and on the
the conclusions expressed here fully referenced.
52. the Constitutional Court States that the provisions of § 37a paragraph 1. 1 the Act. No.
588/1992 Coll. and § 64 para. 2 ZSDP is in a given case must be dealt with from the
the perspective of the alleged neústavnosti in relation to when buying
their current applications, and also the application of the relevant provisions
the Act on bankruptcy and settlement. Furthermore, the claimant to the individual
the contested provisions of the different elements, the modified řešícím in laws with
different purpose, raises no objections regarding their
unconstitutionality, but basically is convinced that their unconstitutionality
It is apparent from their application to specific cases of bankrupts subject to
the scheme of the Act on bankruptcy and settlement, when using the interpretation identified
The Constitutional Court interpretation of constitutionally conformal, has lead to the establishment
inequalities between tax entities.
53. the Constitutional Court with regard to the listed therefore limited to finding
that, even taking into account the design argument does not see any reason to separately
deal with the provisions of § 37a neústavností Cust. No 588/1992 Coll., which was
embodied the obligation to return the tax payer vratitelný overpayment, if
originated as a result of the assessment of excess, even in the case of
bankruptcy proceedings, (with the date of the overpayment as a result of
excess is considered the day of the assessment). Indeed, the law
an obligation to return the tax overcharge to the value added tax
the values of the nature of the construction of the Institute for value added tax and
of its purpose. As well as the Constitutional Court does not see any reason to separately
deal with the provisions of § 64 para. 2, according to which ZSDP tax to pay
overpayment scam on other tax and the excess will be used to cover any
arrears for other taxes. That provision, which is part of the
comprehensive arrangements relating to the payment of taxes (part six of the law on the administration of
taxes and fees), it is generally the tax procedure, related
to the event. přeplatkům and underpayments relating to even divergent types of taxes
registered in the accounts of taxpayers, while the relevance of this
the provisions of the legal concept of the law on tax administration and
the charges against which objections have been raised.
54. The issue of when the alleged unconstitutionality, therefore, does not result from
custom content the contested provisions, therefore, it is important to address the
solely in terms of the consistent interpretation of the relevant constitutional options
provisions in their mutual context and in relation to the provisions of
the Act on bankruptcy and settlement. Specifically, and simply a matter of whether the
application of the provisions of § 64 para. 2 after the Declaration of bankruptcy is ZSDP
unconstitutional.
55. In this respect, the Constitutional Court did not find reason to depart from the conclusions of the
taken in finding SP. zn. III. TC 648/04 (see above), where the question of the
the inadmissibility of set-off has already been resolved.
It is therefore possible to briefly consistently held that in assessing the mutual
respect of the relevant provisions of the law on administration of taxes and fees and the law
on bankruptcy and settlement it is necessary to have in mind in particular the constitutional modification
fundamental rights, as this is consistent with the requirement of respect for the rights and freedoms
of man and of the citizen, as a basis for the rule of law (article 1, paragraph 1,
The Constitution), and from the related article. 1 of the Charter implies a primacy of the fundamental
rights and freedoms, the primacy of individuals against the State. He is then to be
even in the face of fundamental rights with the general interest of the State. From the article.
11 of the Charter, no interpretation to infer improved protection of the rights of
the State as owner (represented by an administrator in tax matters
tax), which, in the specific case under consideration, i.e.. in cases of
the renowned competitions, led to his advantage and gave him the de facto
a privileged position in relation to other creditors. The State as a creditor
the borrower, who becomes insolvent, is in no way a disadvantage, because in
provided the proper application of its claims under the provisions of § 20 ZKV
for him there is no more significant injury or not the injury is greater than at
other creditors when a proportional satisfaction of their claims.
56. From a simple interpretation of the law constitutionally Conformal shows that
adjustment contained in the provisions of § 14 para. 1 (b). I), guaranteeing the ZKV
compensation inadmissible not only private, but private
and the public is by editing a special, having precedence over the
by modifying the General provisions contained in section 59 paragraph 1. 3 (b). (e)), section 40
paragraph. 11 and § 64 para. 2 ZSDP. The provisions of § 14 para. 1 (b). I) ZKV so
creates a barrier in the procedure of the tax according to the provisions of § 40 paragraph 2. 11 and
§ 64 para. 2 ZSDP.
As a result of constitutionally consistent interpretation of these provisions, you are experiencing
the fulfillment of the purpose and objectives of the Act on bankruptcy and settlement, and is not
absolutely impossible for the achievement of the objectives of the proposed regulations the tax, but
satisfaction of claims of the State is allowed to the same extent as the satisfaction
the claims of other creditors, without limiting their property
rights.
57. the Constitutional Court also dealt with the issues of equality of tax assessment
subjects. According to the appellant, it should be the law expressly
to benefit one group of tax subjects, bankrupts,
Therefore, the tax bodies, on whose property has been declared bankrupt, against
other tax entities, even those who are creditors, the receiver
in the ongoing bankruptcy proceedings, which would be in the handling of their
the tax overpayment was fully applied the above-cited legal
the provisions, however, in the case of a bankrupt under tax proceedings performed by the
These provisions on the management of tax overpayment was applied from
because of their constitutional nonconformity, because they restrict the right of ownership
of the bankruptcy creditors who stand outside of the tax
legal relationship and are not under the control of the tax, or persons
involved in the tax proceedings.
58. the provisions of section 2 (2). 8 ZSDP provides that all tax entities
have in tax proceedings before the tax administrator the same procedural rights and
obligations. The purpose of the provision is to guarantee an objective
decision making in tax proceedings, exclusionary discretion on the part of the administrative
authority. The procedural law of equality of a participant administrative procedure means
equivalent opportunity to defend the rights of the subject under consideration in a
a comparable procedure. From the above, in the opinion of the Constitutional Court
clearly shows that bankruptcy is a legal fact
that translates into all relationships of the bankrupt, including the relations to the State
represented by the tax. At the moment the bankruptcy applies to
the tax controlling constraints, in the case of inability to use the
overpaid taxes on the outstanding balance for the tax (netting). Just with the
the specificity of the tax control, ongoing at the same time with
bankruptcy proceedings, you must separately, even from the point of view of possible
procedural rights, to assess the status of tax subjects in bankruptcy and
tax subjects neúpadců.
59. In this sense, as a result of consistent interpretation of the relevant constitutional
the provision is backed by the Constitutional Court, in violation of the equality of tax
entities does not occur, since the contested provisions are applied, in the case of
tax entities (i.e., a set-off is permitted), which are not in the
a comparable position with tax bodies-bankrupt.
60. the constitutional principle of equality embodied in the article. 1 of the Charter, according to which the
people are free and equal in dignity and rights, and finance in a complementary
expressed in article 3 of the Charter, as the principle of non-discrimination in
conferred basic rights, interprets the Constitutional Court in its
the case-law of the dual point of view (e.g. findings SP. zn. PL. ÚS 16/93 on the
24.5.1994 (N 25/1 SbNU 189; 131/1994 Coll.), SP. zn. PL. ÚS 36/93 of
17.5.1994 (N 24/1 SbNU 175; 132/1994 Coll.), SP. zn. PL. ÚS 5/95 (1)
8.11.1995 (N 74/4 SbNU 205; 6/1996 Coll.), SP. zn. PL. ÚS 9/95 (1)
28.2.1996 (N 16/5 SbNU 107; 108/1996 Coll.), SP. zn. PL. ÚS 33/96 (1)
4.6.1997 (N 67/8 SbNU 163; 187/1997 Coll.), pl. ÚS 9/99 dated 6.10.1999
(N 135/16 SbNU 9; 289/1999 Coll.) ad.). The first is due to the requirement of the exclusion
the arbitrariness in the procedure of the legislature when the distinction between the groups of entities and their
rights, the second requirement of acceptability of the constitutional aspects
differentiation, i.e.. the inadmissibility of the prejudice of one of the fundamental rights and
freedoms odlišováním bodies and rights by the legislature (SP. zn. PL.
TC 72/2006-see above).
61. In terms of the material view of the law is necessary to take into account
that, although the claimant alleges that as a result of constitutional interpretation souladného
on the side of tax subjects-bankrupts the advantage, however,
It does not state in what way such advantage in fact lies. In fact, namely the
as for "disadvantage" position of the State as a result of a constitutionally
consistent interpretation has the same rights as other bankruptcy creditors.
62. the obligation to pay the tax (tax arrears) have both
bodies, whether the taxable person-neúpadce in the form of payment of the tax for
application of overpayment (counting), or the tax entity-bankrupt within
rozvrhového control. The overpayment is lacking to direct their disposition,
but always used to pay debts (or its proportional part) Manager
taxes (or State). In General, it should be recalled that the bankrupt has always different
position than neúpadce. If the overpayment is issued in favour of the
in bankruptcy, the purpose of the legislation (the constitutionally
acceptable interpretation) is not and cannot be the alleged advantage of the bankrupt
to neúpadci, but the arrangement of the debtor's assets in the interest of
satisfy all its creditors from the assets forming the estate,
While the emphasis is on the equal status of all creditors.
63. It might perhaps be considered about inequalities on the other creditors
the tax debtor where the creditor of the debtor-neúpadce should as a result
set-off overpayment on an outstanding balance for the tax debtor less the option
satisfaction of the claim of its assets in the event of execution, etc. However, in the
to that end, his position is fundamentally different compared to the position of the
bankruptcy creditor who will be satisfied from any
overpayment, which will be included in the bankruptcy, but only in
a limited amount of under rozvrhového control.
64. The question of the status of the State (representovaného tax) as
the participant's creditors and the bankruptcy proceedings is no longer, as mentioned,
The Constitutional Court dealt with and concluded that the tax has to be equal
position with the other parties to the proceedings, is subject to the same rules
concerning the inadmissibility of compensation claims, and cannot use the
any of your specific permission for the performance of its
the scope of the, which would favor it over other participants.
65. The Constitutional Court of the above reasons, the Court concluded that the
the provisions of § 37a paragraph 1. 1 of Act No. 586/1992 Coll., on income tax of the value added
values, as amended, and the provisions of § 64 para. 2 of the Act
No. 337/1992 Coll., on administration of taxes and fees, as amended
regulations are not inconsistent with article. 11 (1) 5 of the Charter or with the constitutional
policy in the United States, therefore, the proposal of the Supreme Administrative Court on
give the neústavnosti the provisions of § 37a paragraph 1. 1 of Act No. 586/1992 Coll.
and to repeal the provisions of § 64 para. 2 of Act No. 337/1992 Coll., on administration of
taxes and charges dismissed under the provisions of section 70 para. 2 of the Act on the constitutional
the Court. In the rest of the proposal was rejected, according to the provisions of § 43 para. 1 (b).
(c)) of the Act on the Constitutional Court as a proposal made by someone clearly unauthorized.
66. In view of the arguments put forward in addition to the proposal, the Constitutional Court
He adds that when the discussion of the proposal by article 95 para. 2 of the Constitution and
the provisions of § 64 para. 3 of the law on the Constitutional Court is bound by the Petite design
and assessment of the provisions of section 40a of the Act on administration of taxes and fees, in the now
as amended, therefore he could not deal with. The Constitutional Court, however, points out that
It is necessary to continue to apply the provisions of § 14 para. 1 (b). I) of the Act on
bankruptcy and settlement (cf. paragraph 432 of the Insolvency Act, according to the
which for bankruptcy and countervailing proceedings commenced before the effective date
This law shall apply existing legislation).
The President of the Constitutional Court:
JUDr. Rychetský in r.
* Note. Red: a collection of findings and resolutions of the Constitutional Court, volume 40,
find no 19, p. 147
