In The Matter Of An Application For Annulment Of Certain Provisions Of The Law On Vat

Original Language Title: ve věci návrhu na zrušení některých ustanovení zákona o DPH

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$20 per month, or Get a Day Pass for only USD$4.99.
40/2017 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court ruled under SP. zn. PL. ÚS 32/15 day 6. December 2016

the plenary consisting of the President of the Court and judges Rychetského and Paul soudkyň

Louis David, Jaroslav Fenyka, Josef Fiala, Jan Filip, Jaromir

Jirsy, Tomáš Too (Judge-Rapporteur), Jan Musil, Radovan

Suchánka, Vladimir Sládečka, Catherine Šimáčkové, Vojtěch Šimíčka,

Milady Tomková, David Jiří Zemánek Uhlir, and on the proposal of the Group of 21

the senators, on whose behalf it is Senator Ivo Valenta, represented by doc.

JUDr. Zdeněk Koudelka, Ph.d., lawyer, established Optátova 46, 637

00 Brno, on the repeal of the provisions of § 100 para. 1 in the words "or

the inspection report and the provisions of § 101 c to 101i of Act No. 235/2004 Coll.,

about value added tax, as amended, with the participation of

The Chamber of deputies of the Czech Parliament and the Senate of the

The United States as parties to proceedings and of the Government of the United Kingdom as

intervention management,



as follows:



(I). the procedure for the application for revocation under paragraph 101g paragraph. 3 and § 101 d

paragraph. 2 of Act No. 235/2004 Coll., on value added tax, as amended by

Act No. 360/2014 Coll., is hereby terminated.



II. The provisions of § 101 paragraph. 1 of Act No. 235/2004 Coll., on value added tax

values, as amended by Act No. 360/2014 Coll., is cancelled on 31 December. 12.2017.



III. paragraph 101g paragraph. 5 of Act No. 235/2004 Coll., on value added tax

values, as amended by Act No. 360/2014 Coll., is lifted.



IV. The remainder of the proposal is rejected.



Justification



(I).



Recap of the proposal and the arguments of the appellants



1. The Constitutional Court was the day 3. December 2015 served 21 group

the senators ("plaintiffs") for annulment of the provisions of § 100 para. 1

in the words "or an inspection report", as well as to repeal the provisions of §

101 c to 101i of Act No. 235/2004 Coll. of 1 July. April 2004, on the taxation of

value added tax, as amended, (hereinafter referred to as "the law of

value added tax "). Contested statutory provisions govern the Institute

the inspection report established by Act No. 360/2014 Sb. with effect from 1 January.

January 2016, which was amended the law on value added tax.



2. the applicants in the contested statutory provisions fro the contradiction with

article. 1 (1). 1 and article. 2 (2). 3 of the Constitution of the Czech Republic (hereinafter referred to as

"The Constitution") and article. 2 (2). 2, article. 4, art. 10, paragraph 1. 3, art. 11 and the head of the fifth

The Charter of fundamental rights and freedoms ("the Charter"). The appellants their

opinion of neústavnosti about the contested provisions based conflict with

constitutional guarantees of fundamental rights, editing as, in their opinion

adjustment of fundamental rights, the constitutional obligation of the legislature to accept creates

the law, which would undermine the constitutionally guaranteed fundamental rights and restrict. To

It added that the appellants propose the abolition of all infected

the provisions, because they are internally consistent and create a great

the obligations of the administration of the inspection reports, although the reason for and the intensity of

neústavností are from them for each different provisions.



I.)



Privacy policy



3. in respect of the contested legislation to protect privacy, guaranteed by the acts

the constitutional order, the appellants consider, in the context of the regular

the inspection reports are the payer of value added tax (hereinafter "VAT")

required to disclose confidential information to the tax authorities of their

customers and suppliers. The appellants are according to your words

aware that the specific scope of these data down according to § 101 of the law on

value added tax form issued by the tax, which at the beginning

December 2015, i.e. shortly before the effect of the contested provisions, even

is not issued in final version, therefore are not known exactly all

the required data. However, the unconstitutionality of the Act, the appellants argue, not

the form of the tax authorities (financial management). In this connection, claims that

challenged provisions of the Act, particularly section 101 c of paragraph 1. 1 (b). and) of the

value added tax, which lays down the obligation to submit a tax payer

the audit report, if the chargeable event took place with place of performance on the

domestically, or received a payment before the date of implementation of this performance,

allow you to capture any data relating to taxable transactions

provided by the neplátcům and value added tax. If such

the circumstance occurs depends on the appellants ' opinion, the financial

management at the release of the appropriate form. The appellants are therefore

convinced that, regardless of the specific wording of the form of financial management

are the provisions of the Act that such a possibility, unconstitutional.

Specifically, the appellants state that the audit report must be

attorneys and refer to the opinion of the Czech Bar Association, according to which of the

the impact on the obligation of discretion and confidentiality law

services is a State given to a tool, which can track payments between

lawyers and their clients, their amount, frequency, frequency. In the opinion of

The Czech Bar Association as the audit report to the guarantee of the right to

legal aid significantly reduce client protection against interference

State.



4. The appellants also argue that the confidentiality of individual

workers of the tax office is not a guarantee that the collected data is

do not get into the hands of unauthorised persons. The collection of such data, in

the law vaguely defined range, represents a fixed-width

interference with the rights defined by the Charter. This intervention can be according to the appellants '

In addition, be regarded as infringing the essential elements of democratic

the rule of law, to which you can assign and the principle of proportionality in the sense of

Article 4, paragraph 2. 4 of the Charter. From the article. 10, paragraph 1. 3 of the Charter, according to the appellants '

implies the right of everyone to protection of privacy, including protection against

the unauthorized collection of personal data. From this subjective

rights emanate the objective requirements for the rule of law. Neither

the legislature cannot arbitrarily by the law to cover any

the collection of data, but also in its statutory permit must be

poměřována legitimacy, necessity and reasonableness of such collection and

proportionality of interest to collect such data in comparison with

the protection of privacy. The appellants believe that any

collection of personal data, even if legal, carries the

the danger of their abuse. The effort to prevent tax evasion is according to them


Although in the public interest, but automatically cannot of itself justify

the extensive disruption of the right to privacy, including protection of personal

of the data. Part of the Executive power as a significant sum, according to the appellants ' gets

information, without yet exclude their abuse.



5. The appellants believe that the potential scope of

information cannot be justified formally declared the effort to limit the

tax leakage. The essence of these tax evasion according to them lies in the fact that

taxpayers apply the deduction for taxable transactions which took place only

formally. According to the proponents of the amendment Bill has pair just the audit report

the right to deduct VAT in one subject with the tax liability for another

entity. However, the deduction can be applied, it must be the one who

It argues the tax payer. From this perspective, according to the appellants '

unfounded, that the law allowed the reporting of taxable

We are not subject to VAT, payments for who no's deduction cannot apply.

The plaintiffs here have pointed out, that the actual extent of survey data

on the financial management of its form, and can therefore provide a way

that does not relate to data on the implementation of VAT and will be for we are not subject in terms of

the collection of data less comprehensive, but it can be set so that the

will cover data on neplátcích of VAT and the amount of obtained data will be

extensive. The impugned provisions of the Act allow the appellants ' opinion

of the Executive to introduce the world of orwellovský, where the State collects the amount of

information that doesn't want to use right now, but that sometimes, for someone

against someone and in favor of someone can come in handy.



I. (b))



Reservation



6. The appellants contest the notion the contested legislation on the issue of reservations

the law and the limits of imposing obligations within the meaning of article. 2 (2). 4 of the Constitution and article.

2 (2). 3, art. 4 (4). 1 and 2 and article. 11 (1) 5 of the Charter, citing

that section 101 of the Act on value added tax in paragraph 1 only in General and

inadequately provides that the taxpayer is obliged to provide information

needed to manage the tax without qualification. According to the law

plaintiffs certainly can provide a form, but this is intended to ensure

uniformity of administration and any details of administration; not initially

specify the obligations. The scope of the mandatory data must be disclosed

modified in the Act. In this connection, the appellants argue that the Government is in the

the explanatory memorandum to the Act No 360/2014 Coll. explicitly reports the

the contents of the reported data, which are provided as a legal obligation,

in fact, the law does not impose, but merely a form of financial management that

It's all easier and more flexible, without regard for constitutional principles.

The Government through the law by the conviction of the appellants reached the transfer content

and extent of the obligations on executive power not by the form

podzákonného of the implementing legislation (decrees, regulations of the Government),

but in the form of form of financial management. The appellants stated that in the case of

the inspection report is not about a simple duty, but also a duty,

that interferes with the right to privacy as constitutionally protected fundamental right,

and therefore, the reservation is required. You cannot admit that the Executive power is completely

intentionally circumventing the legislative process, through the current Government

most of the leaves in the Act requires that the mandate for the establishment of specific

the restriction of constitutional law by the naked form of financial management, which

itself not even legal regulation in the traditional concept, albeit with

in fact, as a normative legal act in this situation appears. Such

the statutory provision is, according to the appellants ' de facto the empowering Act,

that law, the legislature delegated to the Executive power. The appellants here

referred to the conclusions of the Constitutional Court, SP. zn. PL. ÚS 13/12 of the

23.7. 2013 (N 126/70 SbNU 147; 259/Sb.).



7. The appellants also point to the article. 11 (1) 5 of the Charter, which provides for

that taxes and charges can be saved only on the basis of the law. This

in their opinion, the provisions cannot be interpreted in the strict sense of the word only

so that the law provides tax and the corporate tax rate, but it is necessary to take

the expansion interpretation, according to which the legislature has the right to edit all

Basic and substantial tax obligations, including obligations associated with the

tax administration and control of taxes. I therefore had the content of the mandatory data in

the inspection report edit the law, and not just a form of financial management.

Such a procedure is according to the plaintiffs, the protection against abuse of power.

The fact that section 101 of the Act on value added tax, effectively converts

determine the extent of data included in the surveillance reports on financial

the Administration is at odds with the constitutional directive laying down that the obligation shall

be imposed by law on the basis of the law and the limits of fundamental rights may

be established only by law. Financial management according to the form of the Court

in fact, the appellants ' position of unconstitutionally obtained legislation and

contains the General (normative) that should contain the law

alone.



I (c))



Sanctions and defense against them



8. The appellants also contest the notion question the provisions of § souladnosti 101h

paragraph. 1 of the law on value added tax, which lays down penalties for

breach of duty in the submission of audit reports ex lege, which is according to the

their view, in violation of the right to a fair trial. The contested

the provisions of the Act introduces a penalty directly, without having any authority

to allow the proceedings to investigate why the breach of statutory duty, and

According to moderate their amount, because in fact, there are lower

the boundaries of the fines. According to the opinion of the appellants cannot be taken into account, whether in

the case of the small entrepreneurs to avoid failure e.g. excusable

reason. Such a sanction by the automatism then leads to the fact that there is no right

be the competent administrative authority, which may individually thing

but in fact, it is the specific penalties provided directly

by the legislator. This is not to protect rights in an orderly process.

The plaintiffs here refer to the Constitutional Court, SP. zn. PL. ÚS 24/14

of 30 March 2004. 6.2015 (N 123/77 SbNU 867; 187/2015), which was

as constitutionally Conformal aprobována automatic penalties from the law, but with

that was at the time the contested provisions set out the percentage, which

It takes into account the severity of the offence as well as the income tax, the ratios of the affected

persons from whom the tax is derived. In the case of surveillance reports as to the

the situation when the penalty is set a fixed amount in dollars for all


regardless of the reason for the violation of law and of the income and financial circumstances

VAT payer. This is according to the plaintiffs, the provision unconstitutional. Is not here

guaranteed the right to legal protection, as it is not management, in which

could the payer exercise reasons in its favor, and because the fine

extends into the realm, his property is undermined constitutional protection

According to article ownership. 11 (1) 1 and 4, of the Charter.



I (d))



Proportionality-small versus large



9. The appellants are of the opinion that the impugned statutory provisions

does not stand up to the test of proportionality. In particular argue that the adequacy of the

must be assessed in relation to the subjects that new obligation

burdens. Finally, in their opinion, the current law provides for border

turnover for the compulsory registration of VAT payer 1 000 000 CZK

the last 12 months, however, provides for derogation obligations for

the payer with a turnover of up to Eur 10 000 000, who may have to make it easier

Administration for the tax period calendar quarter, while

basic tax period is monthly. A legitimate reason for this

differentiate them from the plaintiffs ' less burden on small business owners and

the fact that evasion of the intervening State realistically take place in

the big deals. The provisions concerning the inspection reports, however,

apparently do not respect the present a different approach to law and introduce an obligation to

for every payer regardless of its size, with the fact that only

private individuals are allowed to report on the dates for the submission of

tax return (quarterly). The appellants are of the opinion

It is necessary from the viewpoint of the material constitutional law considered and

specific impact on certain types of people. Therefore, the obligation may be perceived

as unconstitutional, if it consumes just as large and small businesses. The impact of the

on the small entrepreneur in comparison with the great is said to be much more detrimental,

up with the intensity of neústavnosti. In this respect, the appellants pointed

at paragraphs 19-22 of the Constitutional Court SP. zn. PL. ÚS 44/13 of 13 November 2002. 5.

2014 (N 90/73 SbNU 497; 130/2014 Sb.) and section 50 of the Constitutional Court

SP. zn. PL. ÚS 24/14 of 30 November 2005. 6.2015.



I. e)



Too short deadlines



10. The promoters will also be regarded as the provision of section 101g of the law of

value added tax introduced by the statutory period of 5 days to correct errors when

submission of audit reports to be completely inadequate, with great

the intensity of the penalties, particularly for small payer, who do not have specialized

staff for this area. Specifically, the appellants argue that

material interference with the rights of the people lies in the fact that the provisions of § 101g

establishes in calendar days, not working days,

How to make eg. the previous provisions of section 101f para. 2 of the law of

the added value. The complainant is known, that the Constitutional Court finding sp.

Zn. PL. ÚS 24/14 (see above) is no longer recognized as a constitutionally compliant § 250

Act No. 280/2009 Coll., the tax code, as amended, (hereinafter the

"tax code"), however, in the provision of the tax code States 5

job days, which in their opinion, a completely different material impact

than 5 days according to the contested provisions of § 101g of the law on value added tax

values. If the contested provision does not specify the period in days

the work, according to the appellants ' must be interpreted as meaning that the time-limit

the calendar. Determination of short deadlines for the fulfilment of the obligations specified in §

101g of the law on value added tax in calendar days, while

elsewhere they use tax rules the time limit in days of work, there is no

important, reasonable and legitimate reason. This provision does not stand up from the

the perspective of proportionality test, since it would certainly state tax system

hasn't crashed yet or not in jeopardy if the deadline was extended, for example.

determined in days of work. The promoters are convinced that

unconstitutionality of the contested provision stems from the material substantially

a harder impact on small VAT payer, which puts a strain on the same obligations

as the bodies of the great.



11. In conclusion, the Group of 21 senators presented in its proposal, to illustrate the

their argument, the minor objections concerning the impossibility of invoice matching

for the control of tax entities, the value of the collected data to third

body (knowledge of the market environment), and the load of the taxpayer

other costs related to the audit report and proposed that

The Constitutional Court its findings challenged the legalities aside.



II.



Representation of the parties



12. The Chamber of deputies of the Parliament of the Czech Republic, as a party to the proceedings

in the comments, signed by its Chairman John Hamáčkem described

the legislative process of the adoption of the contested provisions of the Tax Act

added value, being applied in the fact that the draft law No. 360/2014 Sb.

He was admitted after duly carried out by the legislative process, and

the legislature acted in the belief that the contested provisions are in

accordance with the Constitution, the Charter and the laws of the Republic. In conclusion, your

representation of the President of the Chamber of Deputies said it is fully on the constitutional

the Court to annul the contested legal provisions, to assess and

in the case decided.



13. the Senate of the Parliament of the Czech Republic, as a party to the proceedings in the

signed by the Chairman of the Private plaintiffs, summed up the argument by Milan and

summarize the progress of adoption of the contested legislative process

the provisions with reference to the speeches and opinions of some senators during

discussion of the draft law on the Senate. In conclusion, their observations

President of the Chamber said that it is fully on the Constitutional Court, to make a proposal to

annulment of the contested legal provisions, to assess and decide on the matter.



III.



The statement in intervention of the proceedings



14. the Government of the United Kingdom as intervener in its

observations, signed by the Minister for human rights, equal opportunities and

Jiří Dienstbierem and legislation, drawn up in cooperation with the first

Deputy Prime Minister and Minister of finance Andrei Republic, on the proposal for a

annulment of the contested provisions of the law on value added tax wrapped up

the pivotal points of argument of the appellants and indicated that the views of the Group

Senators on the unconstitutionality of the challenged legislation does not share. The Government subsequently

She submitted a detailed criticism of the different headings of the objections.



III. a)



To protect the privacy of



15. as regards the applicant namítaný constitutionally-conformist intervention

the inspection reports to the privacy, the Government stated that, in order to


the tax administrator may tax correctly identified, inter alia, to obtain

the necessary information. This information to enable it to perform the necessary tasks,

keep the appropriate management and as a result the tax figure and lay down, respectively

to secure its payment. As regards the scope of the data of the tax authorities

the power to obtain and collect, in accordance with the provisions of § 9 para. 3 of Act No.

280/2009 Coll., the tax code, the tax administrator may collect personal information, and

other information as necessary for the administration of taxes, and this only to the extent that

It is necessary to achieve the objectives of the tax administration. An imaginary barrier for

the range in which you can request information, represents the test of necessity

for tax administration. His crossing, according to the opinion of the Government meant the jog

from the jurisdiction of the tax administration, therefore, ultra vires conduct.



16. the provision of data by the tax bodies is considered by the Government

for tax administration. Tax administration is a procedure whose characteristic

feature is the fact that the burden of proof and the obligation to claim and the burden of, and

the obligation of the burden lies on the tax agency. Under section 135 para. 2 of the Act

No 280/2009 Coll., the tax code, the tax body shall itself quantified tax

and provide the prescribed information, as well as other circumstances relevant for the assessment of

the tax. In accordance with § 92 para. 3 of law no 281/2009 Coll., the tax code, tax

the body shows all the facts, which it is obliged to provide the

tax claims and other submissions. Tax administration is the opinion of the Government

based on the fact that the tax bodies shall cooperate with the tax administrator and

provide the data necessary for the administration of taxes. If the appellants are challenging

the provision of data by the tax authorities, according to the Government so implicitly challenge

the very nature of the tax administration. The range of data that you can

demand is so padded with the same way, as is the case with series

other institutes of tax law intended to collect information. Legal

checks and balances the obligations of payers of value added tax to provide administrators

the tax data, or mandate the tax claim and collect this data

are defined by law, namely the law on value added tax and

the general rule for tax administration-tax regulations.



17. the Government considers that, in relation to Act No. 101/2000 Coll., on the protection of

personal data and on amendments to certain laws, as amended

Regulations (hereinafter referred to as the "law on the protection of personal data") has a tax code

the position of the Special Act. Protection of personal data collected when

the administration of taxes is according to her, in the tax procedure code dealt very comprehensively,

in particular, with regard to the neveřejnost the tax administration and the associated obligation

non-disclosure agreement. The law on the protection of personal data with a specific management role

taxes, as calculated in section 3 (2). 6 (a). (f)) provides that the part of the

its rules (specifically, section 5, paragraph 1, articles 11 and 12)

does not apply to the processing of personal data necessary for the performance of

duties of administrator provided for by special laws to ensure

significant financial interest of the United States or the European Union, which

in particular, the stability of the financial market and currency, the functioning of money circulation

and payments, as well as the budget and tax measures. If then

the tax administrator collects other information (based on a broader definition of

jurisdiction in § 9 para. 3 of law no 281/2009 Coll., the tax code), edit the

the law on the protection of personal data, according to the Government in full. In

this context, the Government also pointed out specific rules on the protection

personal data, including supervisory competence of the authority for the protection of personal

data or the obligations of public officials to disclose all

in connection with the administration of taxes Act, and related penalties

for its breach. The Government also mentioned the measures taken in both personnel and

technical level in order to eliminate possible misuse of financial data

Administration. The Government does not share the position of the appellants, who at the Institute

the inspection report fro the "monospace interference" with the rights concerned

subjects. On the contrary, it considers that in the present case is a test of proportionality

met, which in its observations on closer.



18. the Government also outlined the basic principles of the functioning of the control

report as the tax Institute and stressed that the information obtained in the

the inspection report is already a payer shall keep under

the evidence for the purposes of value added tax, and the tax authorities so that

data can detect ad hoc inspection activities. So now enshrines the

the only obligation of periodic reporting of these data by the tax authorities.



III. b)



On the question of penalties for failure to comply with obligations (§ 101h)



19. On the question of penalties for failure to meet the obligations associated with the control

the message stated that the presumption of the appellants to the effect that in the

When the tax irregularities in the control message, the

automatically imposed a fine of $1,000, is not true. The obligation to

to the payment of the fine provided for in § 101h para. 1 (b). and of the Tax Act)

the added value is created by operation of law only if it is the control

reports are filed late, therefore this sanction is not stored in

the discrepancy in the surveillance reports, but for failure to meet legal obligations

submit an audit report in a timely manner, IE. inaction; Similarly, it then applies to the

other complainants referred to the fine in a fixed amount. On the contrary, the discrepancies

in the inspection reports can be submitted by the Government to save only a fine,

the amount of which is determined by the interval of up to $50,000 under § 101h

paragraph. 2 of the law on value added tax. In this regard, there is a full

application of the principle of individualization of punishment, as well as other basic

standards of punishment resulting from the constitutional order. The Government refused to

also the plaintiffs ' party reservations neústavnosti fixed by law provided for

fines and recalled that in the context of assessing the constitutional conformity

automatically the sanction is not the only criteria that

sanctions is stored without the possibility of administrative considerations about the amount, but also that

What is the overall impact of the sanctions on the perpetrators and what is the type the severity of

the relevant tort action.



20. the Government rejected the appellants ' reference to the finding of the Constitutional Court of the

on May 13, 2014, SP. zn. PL. ÚS 44/13 (see above), in which the Constitutional Court

reviewed as unconstitutional bail against a small fuel distributors.

In this connection, pointed out that in the case of the inspection report shall

This is not about intervention in the realm of property in the same way the need to pay


the security deposit. There is no doubt that the audit report has the potential to

the increase in administrative costs on the part of the parties concerned, but

the quantification of these costs would have been present in quite different systems than

It is the obligation to pay the bail in the amount of CZK 5 million. The extra cost

According to the Government's constant, and their amount is proportional to the volume so

carried out by the business. Unlike the bailouts are those costs

fully individualised.



21. with reference to the findings of the Constitutional Court, SP. zn. PL. ÚS 14/09 of 25 March.

October 2011 (N 184/63 SbNU 117; 22/2012) and SP. zn. PL. ÚS 3/13 of

on 15 December. October 2013 (N 176/71 SbNU 81; 375/2013), the Government stated that the

constitutional provisions do not contain regarding the lower limit of the penalty rates

any directive, but must be always followed the command of proportionality

between the type and the level of severity of the tort conduct penalty rates.

The character of legal relations, to which a penalty applies,

may in itself constitute an important factor for the assessment of

the proportionality of the fixed penalties. The Government has expressed the belief that the

the fines contained in the contested provisions of the value added tax act

the value of these requirements is to discharge, as the penalty may in particular

the case take four different statutory amount, which are scaled

According to the severity of the tort action. This is not about wearing

the independent misconduct, but logically linked and cascade gradovanou

the range of penalties for acts punishable by the Government at the most general level

described as a failure of the inspection reports within the prescribed period and that in the

the individual cases referred to in § 101h para. 1 value added tax act

the values shall take severe forms of different sizes.



III. c)



On the question of short time limits (section 101f and 101g)



22. With regard to the applicant of the claim in the excessiveness of the five-day replacement

deadline for the submission of subsequent inspection report in the case that the administrator

taxes in data from the inspection report sees the irregularity (see section 101f

paragraph. 2 of the law on value added tax), the Government stated that the time limit in the

of five calendar days delayed has not been established. Reflects the

This is because the obligation to tax authorities within 30 calendar days of submission of the claim

to determine whether the procedure for the removal of doubt (§ 89

paragraph. 4 Act No. 280/2009 Coll., the tax code). Within 30 days, so you must be

to "pair" the data from the inspection report, and at least in two

steps. In the second step, namely according to the Government's will to include

inspection reports not submitted in a timely manner, and to remove

the irregularities which occurred a mere unintentional error. These two steps from

in terms of process require the need to deliver a challenge to the tax administrator

submission of the inspection reports or subsequent inspection report in the case of

data discrepancies and time fixed on the reaction of the payer. Although it's time

the response provided by the payer of five calendar days,

keep in mind that the main communication channel is a data

the Clipboard. If the payer zpřístupněnu data mailbox, it is a challenge

under § 101g of the law on value added tax delivered to this data

the Clipboard. The five-day period shall begin to run from the moment of notification of the

challenges. Therefore, in the opinion of the tax authorities of the Government must reckon with the time given to

the takeover of delivered messages. This can be achieved, and should not exceed a period of 10

days. The ultimate moment is given in the case, in which a fictitious from

because the payer to the Clipboard for 10 days logs (§ 17 para.

4 of Act No. 300/2008 Coll., on electronic acts and authorized

convert documents). Not so, according to the Government's line of argument to agree with about

the inability to draw the annual leave or take advantage of festive days to pump

off, because the body is available in addition to the five calendar days

on the reaction of another ten days on the receipt delivered to the challenges.



III. (d))



Statutory proceedings



23. the plea of statutory Government stated that the Institute form

Administration and collection of the data needed for tax administration based on them are not in

legal system in not unusual. In the tax area are in the legal order

traditionally contained at least since 1992 in the framework of a regime of law No.

337/1992 Coll., on administration of taxes and fees. The Government pointed out that in

the Institute is currently the form submission is contained in a number of

regulations as tax law, so any other sectors of public law. The Government of the

at the same time stressed that the obligation of submission and indicate in it

the prescribed information required by law, in the case of the inspection report specifically

the provisions of § 101 paragraph. 1 of the law on value added tax. According to the law

opinion of the Government at the same time lays down the scope of the required data, namely that it

may be the only information needed for tax administration. Although the law

explicitly does not provide specific details, which are the contents of the form is not

the boundless and there are legal barriers to restrict it.

First, it is necessary, according to the Government, so that the required data were used to

the fulfillment of the basic objective of the tax administration (i.e. to the correct findings and

the determination of taxes and payment security).



24. the tax cannot request such information, which are above the

framework for the fulfillment of the basic objective of the tax administration. At the same time must be investigated

the basic principles of the tax administration. Statutory boards and in case of

the inspection report does not derive only from the value added tax act

value (see § 101 (1)), but also of the tax code and the constitutional

all right. The legal standards cannot be read in isolation and it is necessary to assess

as a single unit. By providing the information required on the form

does not provide a tax entity data other than that he was already obliged to

provide in the context of individual interaction with the tax administrator. Hypothetically

in all, the tax authorities could require all the data specified in the control

one by one each time the compulsory reporting entity separately, even without specific

the obligation to submit the audit report, however, such a procedure is not only

technically and economically impossible, but at the same time would be the negation of

the meaning of the inspection report, the positive effect builds primarily on the

the speed of obtaining data and their mutual synchronization.



III. e)



(Not) the possibility of procedural defence against Administrator-information request



25. the Government also rejected the appellants ' complaints regarding the possibility of procedural

Defense of tax subjects against the tax on the grant request

of the data. Claims that, as in the case of illegal request


the provision of information in the individual's interaction with the tax administrator (e.g. in

the implementation of the tax inspection), you can refuse the request to provide the data

contained in the form, if the tax entity considers that the data are

required illegally. Taxes the tax entity Manager prompts you to

the data, which did not indicate on the form, added [see § 101g, paragraph 2, of the law on

value added tax in General, respectively, § 11 (1) 1 (b). (d)) of law No.

280/2009 Coll., the tax code]. The challenge is a procedural decision, against

which cannot be appealed (see paragraph 109 (2) of Act No. 280/2009 Coll.,

tax code). In the case that the tax body shall comply with the request of the tax authorities and

the information in the inspection report does not, he will be fined in the amount of 30

EUR [see § 101h (1) (b) (c)) of the law on value added tax].

Against this meritornímu decision is appealable. Against the

the decision of the appellate body on a fine, as well as against a decision

fixing the tax administrator calls on the tax subject to replenishment control

report, you can seek protection in court lawsuit against the decision

administrative authority. Although the current practice (not only in the control message,

but in the context of the entire field of form submissions) demonstrates that the disputes in the

This area does not occur, the legislation provides the means by which the

the tax entity may seek protection of their rights. You cannot, therefore, agree with the

the claimant, who sees the absence of protection options, in that the constitutional

conformity form the tax cannot be reviewed by the constitutional

the Court, after the manner of the legislation. Just because the form is not

by law, but a mere illustration of the legal powers of the administrator

taxes require the tax body information necessary for the administration of taxes, is to

assessment of the legality of the competent ordinary court as well.



26. In conclusion, his Government briefly reacted to the proposal partial objections

the appellants concerning the impossibility to check invoice matching

tax entities, the value of the collected data for the third body and

the load on the taxpayer's other costs with the inspection report

related and expressed to the possible impact of annulment of the contested

provisions and with the requirement of statutory provisions on the annulment of the contested

in favour of the opposition.



IV.



A replica of the appellants



27. The observations of the parties and the intervener was

The Constitutional Court sent to the appellants to any replica. You in your

answers remained on his application for annulment of the contested provisions

the law on value added tax and on the arguments contained in it.



28. The appellants are arguing against the claim of the Government that if they attack

the provision of data by the tax authorities, thus implicitly attacking itself

the nature of the tax administration, and stated that, in General, do not attack it, administrators

the tax is to provide information, but that it should not be at the discretion of the tax authorities,

which data it will be, and these data have to be already determined by the legal

Regulation, in particular by the law, not the transfer this power to the bezbřehým

financial management. A reference to the General principles contained in the income tax regulations

the promoters will not be considered as a sufficient guarantee of the constitutional rights that

may be limited, but only by the law, not the organs of executive power.

If the Government considers the specific information necessary for the administration of taxes,

the plaintiffs will wonder, why is did not set in law.



29. The appellants further argued that the observations of the Government denies the need to

differ materially different impact formally the same obligations on small and

big companies in the tax area. Comically acts on the applicant

commitment of the Government to defend the penalty by the automatism, in their opinion, if the Government

tacitly recognized the incorrectness of the contested provisions by itself

proposes to change them on the way to amend the law.



30. Critically, the appellants expressed to note that Government

the allegation of the appellants, who are trying to give the impression that the construction

is the product of the current Government and is associated exclusively with the inspection report,

is not based on the truth. The plaintiffs according to their words, in no way does not produce

the impression that the US is not used by forms. Criticize, however, said that the

the content of forms for TAX audit report is a legal option to indicate the

a variety of, even very sensitive data, not only about themselves, but also the obligation to

place them about their customers, including a VAT payer. In cases of

referred to by the Government are, according to plaintiffs, the forms that serve various

a person's public administration, information about yourself, not about others. The requirement to indicate

information that can compromise your privacy, it has to lay down the law or in General

legislation, and not the form.



31. Finally, the appellants ' opinion, the form could issue the Ministry of

Finance as the implementing legislation. Here too it would be questionable whether or not

must be at least the basic information in the form of range fix

the law (e.g., in an annex to the law), but the form issued in the form of

the decree would not be excluded from the abstract checks the constitutionality and legality of

This legislation. The Government according to the plaintiffs, apparently was unaware of the

device of the selected solution, so went the way of the tax form

the Administration, which is not issued in the form of podzákonného legislation to

the matter was not under the control of the Constitutional Court.



32. The appellants also rejected the reasoning of the Government that, in disagreement with the

the form can tax subject to reach his control by refusing to

the data indicate, lets you save a fine and then begin the process of the Court of

the review, which is ridiculously from the perspective of the practice. If this

should be a solution not be according to the plaintiffs, introduced an abstract

review of laws at all and nothing. However, this is the original and main

filling of the constitutional justice system "weyrovsko-kelsenovského" type, not

Today, rampant constitutional complaints in specific matters.



33. In conclusion, the Appellants noted that the Government of the consequences of the cancellation of the older

the law. Annulment of the contested parts of the law but does not mean resignation to fight

tax evasion, but the status of the institutional practices of Government and the

the parliamentary majority. According to the plaintiffs, the Parliament will have the opportunity to

the issues of return and edit it constitutionally Conformal manner.



In the.



The Ombudsman's observations



34. at the invitation of the Constitutional Court pursuant to § 69 para. 3 of Act No. 182/1993 Coll.

on the Constitutional Court, as amended, (hereinafter referred to as "the law of

The Constitutional Court ") informed the Ombudsman that, in proceedings relating to revocation

the contested provisions of the law on value added tax.



Vi.




The abandonment of an oral hearing



35. The Constitutional Court, in accordance with the provisions of section 44 of the Act on the Constitutional Court

consider that in the case an oral hearing need not be held, since it would not in any way

could have contributed to the further clarification or deeper things than how it

He met from the written acts of the parties and the intervener

control. Nenařízení oral proceedings justifies the fact that the constitutional

the Court does not consider necessary to perform any evidence. Neither participants

management, nor the intervener yet of an oral hearing

did not request.



VII.



An assessment of the conditions of the proposal



36. notes that the Constitutional Court is competent to judge the proposal on

annulment of the contested statutory provisions and that the proposal of the Group of 21 senators

It meets all the formal requirements laid down by law and was submitted to

persons authorised to do so [§ 64 para. 1 (b)) Act No. 182/1993

Coll., on the Constitutional Court]. At the same time, none of the reasons does not find it

the inadmissibility of the proposal.



37. in the course of the proceedings before the Constitutional Court, however, there has been a partial

amendment to the two contested provisions of the law on value added tax.

Act No. 113/2016 Coll., amending certain laws in relation to

the adoption of the law on the registration of sales, was canceled in the second paragraph of section 101 d

the law on value added tax (point 2 of part two novelizujícího

of the Act), and with effect from 1 January. 5.2016. The existing third paragraph,

newly became the second paragraph. Furthermore, law No. 243/2016 Coll., which

changing some laws in connection with the adoption of the Customs Act, was to

paragraph 101g paragraph. 3 of the law on value added tax for the inserted

the number "5", the word "working" (point 35 part of the thirty-third novelizujícího

of the Act), with effect from 29. 7.2016. Because the appellants

seek the annulment of the relevant provisions in the text of the amendments of Act No.

360/2014 Coll., in their original form, without that fact

take into account the subsequent change of the remedies of its proposal, the conditions

partial termination of the proceeding within the meaning of the provision of section 67 para. 1 of law No.

182/1993 Coll., on the Constitutional Court, the constitutional court verdict under point (I)

proceedings on the application for annulment of the provisions of § 101 paragraph. 2 and § 101g para. 3

Act No. 235/2004 Coll., on value added tax, as amended by Act No.

360/2014 Coll., to this extent, he stopped.



38. at this point, the Constitutional Court considers to be appropriate to note that if

It is the only minor amendment to paragraph 101g paragraph. 3 of the law on the taxation of

value added tax, the Constitutional Court found that it was in relation to objections

the appellants about the amendment to the essential. Appellants fro

unconstitutionality of the time limit in that provision in its short, caused by

above all, the fact that it is a period calculated according to calendar days. In the draft

the appellants expressly state that "material interference with the rights of individuals is in

the fact that § 101g sets in calendar days, not working days

...". Since the amendment in question has become a period calculated according to

working days, lost the argument of the appellants in this case meaning.

The legislature changed the law itself, as the plaintiffs had demanded. Therefore,

The Constitutional Court here also went to the partial termination of the proceeding in

accordance with its current preview of the application of section 67 para. 1 of law No.

182/1993 Coll., on the Constitutional Court, as expressed for example. in finding SP. zn. PL.

ÚS 15/01 of 31 July. 10.2001 (N 164/24 SbNU 201; 424/2001 Coll.). Here to

the issues noted that in the case of a change that in terms of

the reasons for the assessment of the constitutionality of the whole of the contested provision does not

decisive, this is not a case to which the Court referred to the provisions of law No.

182/1993 Coll., on the Constitutional Court, to halt the proceedings turned out (see section

VII/c of the cited Award). In the present case, however, is a situation

the opposite, and the Constitutional Court therefore partially terminating the proceedings went

here as well.



39. In the remaining parts of the design are met all the conditions for its

substantive assessment.



VIII.



Assessment of the conformity of the legislative process of constitutional



40. in proceedings for review of the standards, the Constitutional Court pursuant to the provisions of § 68 para.

2 Act No. 182/1993 Coll., on the Constitutional Court, as amended by Act No. 48/2002

Coll., first assesses whether the contested act was adopted and issued within the limits of

The Constitution laid down the competence and constitutionally prescribed way. In

If the Constitutional Court considered the observations of the parties to proceedings and of

Council publications, publicly available at http://www.psp.cz,

found that the contested provisions of the law on value added tax was

adopted within the limits of the Constitution laid down the competence and constitutionally prescribed

way. Indeed, the appellants did not raise themselves against the legislative

no objection to a procedure.



IX.



The diction of the contested statutory provisions



41. The provisions of § 100 para. 1 of Act No. 235/2004 Coll., on value added tax

values, as amended, reads as follows:



"(1) the payer or identified person are required to keep on file for

value added tax purposes, all information relating to their

tax evasion, in the breakdown required for the Assembly of the tax

the attribution, the summary report or inspection report. "



42. The provisions of § 101 c of Act No. 235/2004 Coll., on value added tax,

as amended by Act No. 360/2014 Sb., as follows:



"§ 101 c



The obligation to submit the audit report



(1) the payer is required to file an audit report, if



and taxable sales) made with place of performance on the territory of the country, or had received

payment before the date of implementation of this performance,



(b)) was adopted by the chargeable event with place of performance on the territory of the country, or has provided

payment before the date of implementation of this performance,



(c)) in a special scheme for investment gold



1. He accepted the mediation service for which tax was applied by

§ 92 para. 5,



2. has carried out the supply of investment gold exempt from taxes for which

is entitled to a deduction under § 92 para. 6 (a). (b)), and (c)), or



3. investment gold produced or transformed into investment gold gold

in accordance with § 92 para. 7.



(2) the audit report for the company given the specified partner who

served in the tax return for the company. "



43. paragraph 101 of Act No. 235/2004 Coll., on value added tax,

as amended, reads as follows:



"§ 101 d



Requirements and method of inspection reports



(1) in the control message is the payer must indicate the prescribed data

necessary for the administration of tax.




(2) if the audit report submitted by means of data messages

requiring additional confirmation, to be confirmed under the terms of

referred to in the order within the time limit for the submission of audit reports. "



44. the provisions of section 101e of Act No. 235/2004 Coll., on value added tax,

as amended by Act No. 360/2014 Sb., as follows:



"section 101e



The deadline for the submission of audit reports



(1) the payer who is a legal person, the inspection reports

calendar month, within 25 days after the end of the calendar month.



(2) the payer who is a natural person, the audit report within the time limit

for the submission of the tax return.



(3) the time limit referred to in paragraphs 1 and 2 shall not be extended. "



45. the provisions of section 101f of Act No. 235/2004 Coll., on value added tax,

as amended by Act No. 360/2014 Sb., as follows:



"§ 101f



Corrective and follow-up reports



(1) before expiry of the deadline to submit the inspection report can the payer

replace the audit report, which has already filed, corrective inspection

the message; to the previous inspection reports shall be disregarded.



(2) if the payer after expiry of the period for the submission of audit reports that

in this inspection report stated incorrect or incomplete information, it is

shall, within 5 working days from the date of detection of incorrect or incomplete

data file a subsequent audit report in which these deficiencies

well that ends well.



(3) for subsequent audit report shall apply mutatis mutandis the provisions of

the inspection report, unless the law provides otherwise. "



46. the provisions of section 101g of Act No. 235/2004 Coll., on value added tax,

as amended, reads as follows:



"§ 101g



The procedure for failure to fulfil obligations relating to the inspection reports



(1) the audit report is lodged within the prescribed period, it shall invite the

the tax payer to his administration in the spare time within 5 days of notification

This challenge.



(2) the tax information listed in the inspection report will examine, if appropriate,

and in case of doubt as to their accuracy or completeness shall invite the

the Bill that the data has changed or added, or the original data

confirmed.



(3) the payer shall, within 5 working days from the notification of challenges by

paragraph 2 of the inaccurate or incomplete information be amended or supplemented, where appropriate,

the original data confirm, through subsequent inspection

report; If this subsequent audit report submitted in a timely manner,

paragraph 1 shall not apply.



(4) the tax administrator delivers control related reporting challenge

electronically, through the



and data boxes, or)



(b)) public data network to the electronic address of the payer for this purpose

provided, if the payer does not have zpřístupněnu data mailbox.



(5) call, which is delivered through the public data network on

the e-mail address shall be deemed to have been delivered at the moment of dispatch

the tax administrator.



(6) if the payer who does not have a zpřístupněnu data mailbox,

the tax authorities have yet to communicate to the electronic address, paragraph 4

not apply. "



47. the provisions of section 101h of Act No. 235/2004 Coll., on value added tax,

as amended by Act No. 360/2014 Sb., as follows:



"§ 101h



The consequences for the breach of the obligations relating to the inspection reports



(1) if the person fails to give the audit report within the specified period, the mu

the obligation to pay a fine in the amount of



a) $100, if it subsequently submits, without being prompted,



(b)) $10,000 if it lodges in spare time after he was

the tax administrator is prompted,



(c)) 30 EUR, if it does not give on the basis of calls for change, addition or

confirmation of the information given in the reports submitted to the inspection, or



(d)) of $50,000, if it does not give or in spare time.



(2) the tax authorities impose a fine up to $50,000 to the payer, which on the basis of

call the tax administrator to remove the doubt does not change or does

incorrect or incomplete information through subsequent inspection

reporting.



(3) the tax administrator stores in addition to the fines provided for in paragraph 1 or 2 of those who

non-fulfilment of obligations relating to the inspection reports seriously makes it difficult

or have undermined the administration of taxes, a fine of up to 500 000 CZK.



(4) on the obligation to pay a fine referred to in paragraph 1 shall decide the tax administrator

payment at the same time it will prescribe the assessment and registration taxes.



(5) a fine in accordance with paragraphs 1 to 3 shall be payable within 15 days of final

a decision on the fines.



(6) in determining the amount of the fine in accordance with paragraphs 2 and 3 shall ensure the tax administrator,

to a fine not in gross disproportionate to the importance of the broken obligations and to

the severity of the effect for tax administration. In doing so, shall take into account, in particular, to the extent

synergy by payer. "



48. paragraph 101i of Act No. 235/2004 Coll., on value added tax,

as amended by Act No. 360/2014 Sb., as follows:



"§ 101i



The period for the extinction of the obligations related to the inspection reports



(1) discharge the responsibilities associated with the inspection report may be required

the closing date for the determination of the tax.



(2) a fine may be imposed, or to decide on the obligation to pay it no later than

within 3 years from the date on which the breach of obligations. "



X.



The general basis of the constitutional review of tax legislation



49. The Constitutional Court has already, in its decision-making practice question

a review of legislation in the area of legal regulation of taxes and fees and

formulated some basic propositions that represent for constitutional law

review of legislative acts in the area of social relations underlying

a starting place.



50. in finding SP. zn. PL. ÚS 18/15 of 28 June. 6.2016 (271/2016)

The Constitutional Court stated that the determination of the tax liability and effective

the collection of taxes are vital to the proper functioning of the State and

the company. On taxes is dependent not only financial saturation of public

budgets and the running of the State apparatus, but also the realization of economic,

cultural, educational, security, defence and social policy. He emphasized the

that finding the optimal model of the tax burden is extremely

complex and unconditionally requires to take into account many dynamic factors

economic, demographic, statistical and other faculty. In

this context did not mention that the optimal tax

loads are typically among the so-called. political issues, IE. between such

questions, which results from the social consensus, preferences,

the population values, mentality of the population, tradition, etc. The determination of the

the tax burden in the opinion of the Constitutional Court are between


the most controversial issues in the rivalry of political parties and movements and

plays a vital corner of the preferences of voters in the elections. It is therefore a question

on the composition of the Parliament and the solution depends of other representative

Councils of all levels, as well as the composition of the Government, and their transformation

in the form of tax legislation rests on the shoulders of the political

representation resulting from the election. The environment in which this takes place

process, embodies above all other debates, Parliament

representing a wide spectrum of social interests (see paragraphs 71 to 75

from the top of the cited Award).



51. Bearing in mind the above, the Constitutional Court cannot

assess the product of the tax system, and to assess the tax laws of the

the perspective of the fulfillment of the basic functions of taxes. As already stated. in

finding SP. zn. PL. ÚS 29/08 dated March 21. 4.2009 (N 89/53 SbNU 125;

181/2009 Coll.), "assessing taxes in terms of these criteria belong to the

competencies of the democratically elected legislature. If the Constitutional

the Court proceeded, he entered the field of individual policies, the

rationality cannot be well enough in terms of constitutionality hodnotiť "(paragraph 58).

The Constitutional Court does not intend to review the tax policy with souladnost

the other policies of the State, as it was not always on thin ice

other supporting analyses, the results of which must assess and draw from them

the political conclusion of Democratic lawmakers, who must consider

the tax treatment is appropriate and necessary (paragraph 60).



52. The above outlined the reticence of the Constitutional Court does not mean

the absolute exclusion of the tax issues of the review of powers of the constitutional

Court, or resignation of the Constitutional Court for a review of the tax laws of the

the perspective of their constitutional conformity, however, reflects the conservation of essential

degree of restraint, and of the voluntary restraint in this review,

just in the interest of preserving the principle of the separation of powers.



XI.



The substance of the design review



53. Guided by those aspects of the review of the Constitution, the Constitutional Court

consider the argument of the appellants, the parties and the adjacent

party to the proceedings, and in spite of the above mentioned reticences concluded

the proposal is partly justified.



54. Most, if not the main part of the appellants ' argument is

focus on their alleged intervention the contested legal provisions to the basic

privacy rights pursuant to art. 10, paragraph 1. 3 of the Charter, according to which the

every right to protection against unjustified collection, publication

or other abuse of information about yourself. The appellants then specifically

consider that the impugned statutory provisions does not stand up to the legitimacy,

the necessity and reasonableness of any data collected on the basis of the implementation of

Institute of inspection reports or the proportionality of the interest on such

the collection, in comparison with the protection of privacy.



55. The Constitutional Court has already in the past, to the essence of the right to protection

Privacy in its broadest sense. For example, in finding SP. zn.

PL. ÚS 24/10 of 22 June. 3.2011 (N 52/60 SbNU 625; 94/2011 Sb.)

held that "the right to respect for private life also includes a guarantee

within the meaning of the principle of the self-determination of individual decision making about himself.

In other words, the right to privacy guarantees the right of individuals

decide at its own discretion whether or the extent to which the

the manner and circumstances in which they are to be facts and information from its

personal privacy is made available to other entities. As to the aspect of the right to

Privacy in the form of the right to Informational self-determination, explicitly guaranteed

article. 10, paragraph 1. 3 of the Charter "(paragraph 29).



56. the right to information self-determination does not constitute an absolute,

bezvýjimečnou guarantee the prohibition of public authority collect, publish

or otherwise use the data about private individuals. The Constitutional Court

previously defined the conditions for breaking this law. "Interference with the fundamental

individual rights to privacy in the form of the right to Informational self-determination

within the meaning of article 87(1). 10, paragraph 1. 3 ... Of the Charter ... is so possible only through

the mandatory statutory regulations which must above all needs

arising from the principle of the rule of law and that meets the requirements

resulting from the proportionality test, when, in cases of conflicts of fundamental

rights or freedoms with the public interest, or with other fundamental rights or

freedoms must be considered the purpose of the (target), such an intervention in relation to the

the used resources, taking the benchmark for this assessment is the principle

of proportionality. Such legislation must be precise and clear in

their formulations and predictable enough to potentially affected

individuals provide sufficient information about the circumstances and

the conditions under which the public authorities authorized to intervene in their

privacy, in order to be able to modify their behavior so that they

into conflict with the restrictive standard. It must also be strictly defined and

the powers granted by the competent authorities, the manner and rules of their

the implementation, so that the individuals were given protection against

arbitrary interference. Consideration of admissibility of intervention in terms of

the principle of proportionality (in the broader sense) includes three criteria.

The first is the assessment of the eligibility of the fulfillment of the purpose (or also

Fitness), and verifying that a particular measure at all

able to achieve the intended objective of protecting other fundamental

rights or public good. Second, it is an assessment of the need,

in which it is examined whether the resources used in the selection of the

a resource that is the most fundamental right. And finally, is

examined the adequacy (in the strict sense), that is. whether the injury on the basic law

is not excessive in relation to the intended target, IE. that measures to control

basic human rights and freedoms shall not, in the case of the collision of the basic

rights or freedoms with the public interest, their negative consequences

outweigh the positives, which represents the public interest in these

the measures "(paragraph 37 above cited finding SP. zn. PL. ÚS 24/10).



57. The Constitutional Court first examined whether the proportionality test stands

Institute of inspection report as such. If this were not so,

should individual provisions of the importance of the contested

the law. As shown below, the audit report would stand up in the

all of the three-step test.



58. the first step of the proportionality test is an assessment of the eligibility of the


fulfill the purpose of the contested legal provisions, i.e. whether it is the audit report

able to achieve the intended objective, which in this case is the protection of the

public interest in the proper tax collection as an important prerequisite for the

proper functioning of the State and society (see paragraph 50 above).



59. According to the explanatory memorandum to the Act No. 360/2014 Coll., amending Act

No. 235/2004 Coll., on value added tax, as amended

regulations, and other related laws (see House print 291/0)

the audit report presents a set of requirements on the records of the data

relating to tax liability, because of the improvement of the selection

taxes, restrictions on tax fraud in VAT, and thus strengthen the position

fair tax entities. The essence of the inspection reports, then the explanatory

the report (and in conformity with the observations of the Government on the proposal to repeal the laws,

adjustment of the control report) characterizes the way that the aim and purpose of the

This measure is to enable tax administrations to obtain information about the selected

transactions realised by the payer, and in conjunction with other information that has

the tax administrator is available, identify the risk concentration of people (String,

carousels) that costs unduly public financial resources

budgets in the form of paid excessive deductions. A major factor has

be the timeliness of findings, when tax authorities obtained information to each other

compares and combines the form of "matching" individual control message,

and so at the time of the inspection report has information that he

enable you to make a timely analysis and identify possible risk concentration

payers who illegally running out tax and apply the right to deduct,

However, another article that took strings. Just the immediate identification of the

organised by the combination allows the tax administration to block unauthorized

the outflow of funds, or their blocking action on Bank

accounts, namely through the Institute ensure according to § 103 of the law on

value added tax. At the time of the submission of tax returns so according

the Government, as the petitioner's Bill, the tax has information that would

otherwise, gather the predominantly to the subsequent inspection for each

payers. At the time of implementation of such control activities are, however, some

articles link already nesoučinné and financial resources are odčerpány out

available to the tax authorities. For this purpose, the contested provisions of § 101 paragraph.

1 of Act No. 235/2004 Coll., on value added tax, as amended by Act No.

360/2014 Coll. lays down that in the surveillance reports of the payer is required to provide

the prescribed data necessary for the administration of tax.



60. According to the provisions of § 1 (1). 2 and 3 of law no 281/2009 Coll., tax

order, you can manage the tax procedure, which aims to correct the findings and

the determination of taxes and payment security. The basis for this right

detection and determination of tax is the tax return, report or statement,

as well as additional tax declaration, the follow-up report or additional

the Bill filed by the tax body. Institute of inspection reporting

can be considered as one of the species of the tax claim to be from other

tax claims concerning VAT vary some of the specifics. By them

especially the periodicity of reporting (cf. section 101e of Act No. 235/2004 Coll., on

value added tax, amended by law No. 360/2014 Sb.) and the range of

the required data (mostly section 101 d, paragraph 1, of the value added tax act

value) depending on its specific determination (to do this, see

on). In this respect, therefore, the inspection report, the Institute has no way not

out other tax institutes (tax statement) and therefore can be done

the conclusion that the audit report is generally eligible to fill

the purpose of the adoption of the law being monitored by the legislature. The Constitutional Court has, therefore,

that a legitimate objective of general interest, respectively, pursued by the contested legislation

It is shown here. Having regard to the above outlined the limits of control standards

However, tax law sector to the Constitutional Court to assess

the audit report is the optimum means to achieve

the declared objectives. As already mentioned, the legislature has in this regard

quite a wide discretion in order to realize your options

Economic and social policy.



61. As regards the assessment of the second step of the test of proportionality,

at this point, noted that the examination of whether it is in the selection of possible

the resources that the resource that is used as a fundamental right

the most, IE. If it's a de facto on the most environmentally friendly way to

achieve the intended objectives, the (legitimate) is in the light of the nature of the

tax procedural law hardly feasible. Tax administration and

fees is characterized by a significant degree of the dynamics of its business processes,

affected by a variety of factors having its origins in your own

interaction of tax subjects in the broadest sense of the word, which in the course of

time can take various forms, after the qualitative and quantitative

the page. Tax administration then, if it is to live up to its mission, it must be able to

These changes are adequately responding.



62. The fact that VAT payers are burdened in this context

obligatory in the surveillance report personal information, even without further

does not mean that it is an unconstitutional invasive intervention in the rights of the individual

to protect against unauthorized collection, disclosure, or other

abuse of information about yourself, as the article has in mind. 10, paragraph 1. 3 of the Charter.

Hardly you can think of an effective tool for the tax, which would

No data have been collected about transactions of tax entities that are

by its very nature to a greater or lesser extent, associated with the collection of some of the

data of a personal nature. The key question here is the extent to which tax

operators are required to provide personal information, the nature of these data, as well as

What kind of guarantee against their abuse are provided to them. With this

immediately the petitioner related to zpochybňovaná online availability

data on a national scale.



63. The appellants are considered to be sufficient to achieve the above tool

objectives the existing system controls individual tax entities.

They point to the dangers of online availability of interconnected databases.

This concern is understandable, but not sufficient for the conclusion of the

neústavnosti the whole of the contested legislation. If you are developing

the technical means used for business, must monitor and


tax administration. At a time when many shops and money transfer in progress

really on-line, i.e. the time in seconds, it is hard to insist that

the State has no right to this trend, but it has to stay on at random

the checks carried out. You cannot ensure in particular the timeliness of findings

information and the adoption of the measures required by the tax authorities-see

paragraph 59 above. The appellants do not produce another instrument that would

the most efficient, yet effectively, lead to the achievement of the above

legitimate objective. It is not the task of the Constitutional Court, then such a tool

fudge. In the opinion of the Constitutional Court as the audit report and in

the second step of the test of proportionality.



64. In the evaluation of the third step of the test assessed the Constitutional Court

adequacy in the strict sense, i.e.. whether the injury on a basic law caused by

collecting the data of a personal nature is not excessive in relation to the intended target.

Therefore, whether the audit report in this direction with its potentially negative

consequences does not exceed the benefits in the form of public interest to prevent or

minimize the above mentioned tax fraud.



65. At this stage, the Constitutional Court still does not deal with the applicant criticised

breach of statutory duties when saving the provisions of § 101 d

paragraph. 1 of Act No. 235/2004 Coll., on value added tax, as amended by

Act No. 360/2014 Sb. As already mentioned, the constitutional court assesses the adjustment

the inspection report as a whole. According to the provisions of § 9 para. 3

Act No. 280/2009 Coll., the tax code, the tax administrator may collect

personal information and other information as necessary for the administration of taxes, and this just in

to the extent that is necessary to achieve the objectives of the tax administration. This

the tax administrator permission to collect personal and other information on tax

subjects reflect even the provisions of § 11 (1) 1 (b). (b)), and (c)) of law No.

280/2009 Coll., the tax code, which is endowed with the powers of the tax administrator

perform the search activity and control the performance of the obligations of the persons

involved in the administration of taxes; at the same time is entitled, for the purposes of administering

taxes, establish and maintain a registry and registration of tax entities, and their

tax obligations (article 11, paragraph 2 of the same Act No. 280/2009 Coll., tax

order), which foresees the collection of data about implicite tax

subjects.



66. The audit report is generally defined in terms of the range of

data collected at different tax bodies, in which

the framework also occurs to the collection of data of a personal nature. Because the law on the taxation of

value added does not specify the required information, it was based on the Constitutional Court

for the purposes of completing the test of proportionality of data required

the form of the Treasury at the time of decision making. From the public

the standard form of the inspection report available on the portal

www.financnisprava.cz, as well as instructions for filling it out, it is evident that the

are required at the time of the base payer's identification data (name and

the seat of the legal person, where appropriate, the name, surname, date of birth and

place of residence, in the case of a natural person), the basic data relating to the

each made chargeable, that is, the date of their

of implementation, respectively. the date the obligation to admit the tax registration number

tax document, the general character of the subject of performance and its value. Further

are the tax administrator required basic identifying information about the customer

or suppliers which are either tax identification number, or,

If it is a body without a tax identification number, the name and

last name or business name of the body, in the case of natural persons

date of birth and place of residence or seat of the body. Out of the said

enumeration, it is clear that now is not the information which the tax administrator's

could not obtain a custom search or control the activities of, or for the information,

that would be a prima vista exceeded the framework of data necessary for the achievement of

the objectives of the tax administration.



67. This also applies To a whole series of other tax claims, for example, tax

a confession. The data obtained in the framework of the control message is then to

the scope does not differ from the data of the payer shall keep under

the evidence for the purposes of value added tax. While the tax administrator's

no doubt the figures can determine their own control of the activities, whether

the way of a tax audit, investigation, or similar local institutes for

where the scope of the information that the tax administration tax subjects required to

convey, also is not specified. This also applies in the case of the applicant

namítaného intervention into the protection of lawyers ' clients who are VAT payers. (I)

Here you can get your tax data on the amount of control activities,

the frequency or frequency of payments effected between the lawyer and his

clients. Interference with the right to privacy so currently, you cannot

be regarded as disproportionate in relation to the above-stated public interest

on the avoidance or minimization of the aforementioned tax fraud. In General

the plane so legislation passed before the Constitutional Court as well as in the third

step of the proportionality test.



68. Although the test of proportionality for overall adjustment control

reports favorably, it does not mean that all the provisions he found Constitutional

the Court souladná with the constitutional order.



69. in relation to the provisions of § 101 paragraph. 1 of Act No. 235/2004 Coll., on

value added tax, amended by law No. 360/2014 Coll., the appellants

contested violation of the principle of reservation of law for imposing obligations.

The applicant referred to the principle of reservation of law lies in the fact that "no one

must not be forced to do what the law does not oblige ' and that ' obligation can be

saved only on the basis and within the limits of the law "(article 2, paragraph 4,

Constitution, article. 2 (2). 3, art. 4 (4). 1 of the Charter). Referred to the contested

the provisions of the stores to the payer the obligation to State in the surveillance reports

"the prescribed data necessary for the management of taxes". The law of "prescribed information"

no closer does not specify, and through the provisions of § 72 para. 1 and 2

Act No. 280/2009 Coll., the tax code, as amended by law No. 458/2007 Coll.

left to the Ministry of finance, to the following data in konkretizovalo

the electronic form of the inspection report. The Government says that the

the tax administrator may only request the information necessary for the administration of taxes,

While this data might require after each tax payer

separately, even without specific obligations to submit the audit report. This is

true, but then it is the tax administrator requested specifically and in


much lesser extent-specific data after a specific payer.

By contrast, the audit report shall be submitted to the payer without prompting and show

in it the data from the current form of the form. So this form gets

the form of a podzákonného which the infinite circle of addressees

stores specific obligations. And since obligations are in the law

defined very vaguely and broadly pursued them on the

The Ministry of finance. You can agree with the applicant that the Executive power is

so vested power that according to the Constitution, legislative power belongs only. The need to

the legal definition in this case is all the more urgent that the payer must

provide data regularly and in electronic form. At one point, and

virtually at the same time as the State collects a huge amount of

information. And this fact makes all this information away

far more sensitive and valuable.



70. therefore, the Constitutional Court concluded that the law must specify

at least the circuit data, that must communicate to the payer. This does not preclude any

statutory mandate (article 79, paragraph 3, of the Constitution) to determine the specific

the individual data of the Ministry of finance. But it would have to happen

in the form of legislation. Just so it is possible to arrange for the payer

the predictability of data that the State will require. Without meaning

then of course there is the possibility of any abstract checks the constitutionality of

the parties to the Constitutional Court, which is excluded in the case of a simple form.

With regard to the violation of the provisions of article. 2 (2). 4, art. paragraph 79. 3 of the Constitution and

article. 2 (2). 3 and article. 4 (4). 1 of the Charter of the Constitutional Court according to the provisions of section 70

paragraph. 1 Act No. 182/1993 Coll., on the Constitutional Court, as amended by Act No.

48/2002 Coll., set aside the said provisions of § 101 paragraph. 1 of law No.

235/2004 Coll., on value added tax, amended by law No. 360/2014 Sb.



71. the effects of the abolition of the latter provision, the Constitutional Court has established

up to 31. 12.2017 (section 70 (1) of Act No. 182/1993 Coll., on the constitutional

the Tribunal, as amended by Act No. 48/2002 Coll.), and this for the following reasons.

Immediate termination of this provision would lose the sense of a legal

the adjustment of the control report. In doing so, in the opinion of the Constitutional Court is

the reason for the cancellation of the provision rather the fear of its possible

future abuse. As already mentioned above, currently required by the

the data can be considered necessary to achieve the objectives of the tax administration (point 66

from the top).



72. The Constitutional Court has found not to conflict with the constitutional order and for the provisions of §

101g paragraph 1. 5 of Act No. 235/2004 Coll., on value added tax, as amended by

Act No. 360/2014 Coll., namely the conflict with the article. 2 (2). 3 and article. 4

Of the Charter. The said provisions of the Act provides that "the challenge, which is

delivered through public data networks to an e-mail address,

shall be deemed to have been delivered at the moment of submitting the tax administrator ". The provisions of the

§ 101g of the law on value added tax in addition to the delivery permitted

e-mail address and delivery to the data box. Doing business

individuals, however, have only an option and not an obligation to have the data

mailbox (section 4 of Act No. 300/2008 Coll., on electronic acts and

authorized document conversion, as amended). For

in case the payer does not have zpřístupněnu data mailbox and has told so far

Tax Manager, your e-mail address, it's the General format

service under section 42 to 51 of the tax code. For all of these

ways of delivery for delivery (or fiction) necessary to

the challenge was getting at least to the sphere of the disposition of the addressee-payer. According to the

the provisions of § 17 para. 2 and 3 of the law on electronic acts and

authorized conversion of documents, the document is delivered at the time of

sign in authorized persons in the data box or on the tenth day after delivery

in the data box. When delivering to natural persons according to the provisions of §

44 the tax code is served either at the moment of receipt, or

the expiry of the 10-day storage period (section 47 of Act No. 280/2009 Coll., tax

order).



73. According to the contested legislation, however, it is sufficient for the creation of a fiction delivery

already the despatch of the call. Because the public data network cannot be

be considered as completely reliable, you may not be prompted to the disposition of the payer

get it at all, or it gets with a time lag. The payer who

data deposit box does not have tax and your e-mail address,

so potentially getting into a situation where it is stored in a

the obligation, which is without its own guilt or know. Such an obligation

is not realistically achievable. Conflict with the articles of the Charter therefore already mentioned

The Constitutional Court annulled the provisions of § 101g and para. 5 of Act No. 235/2004 Coll.,

about value added tax, amended by law No. 360/2014 Coll., and with it the

effect on the date of publication of the finding in the journal of laws (section 70 (1) of the Act

No. 182/1993 Coll., on the Constitutional Court, as amended by Act No. 48/2002 Coll.).



74. Attention then no objection the appellants on

the protection of the tax administrator collected personal and other information. In

tax regulations is the question of the protection of and provision of information given to the whole

the head of the fourth part of the second, the provisions of § 52 para. 1 provides that

official persons and persons involved in the administration of taxes are bound by the obligation

secrecy about what is in the administration of taxes Act about the circumstances of the other

persons. There is a comprehensive discussion of law dedicated to the challenges not only with the obligation

secrecy, but also issues of information obligations and tax Manager

obligations of other public authorities and bodies, both public and private

the right to provide tax information. Similar legislation was

the predecessor of the tax code-Act of the Czech National Council No. 337/1992 Coll., on the

the administration of taxes and fees, the provision of section 24. It's worth noting in this regard,

costing some interesting context in the current legislation, in particular

the provision of section 10 of Act No. 106/1999 Coll., on free access to

information, entitled "protection of the confidentiality of the matrimonial property regime", according to which the

"information about the financial circumstances of the person who is not a mandatory

the body, obtained on the basis of the laws on taxes, fees, pension

or health insurance or social security, statutory body

under this Act, does not provide ", IE. a certain level of protection is ensured

the data collected by way of the inspection reports here as well. To infringements of the

obligations of confidentiality can be fined up to 500


EUR (section 246 of the Act No. 280/2009 Coll., tax code; i § 25 identically previously

a valid Act No. 337/1992 Coll., on administration of taxes and fees, as amended by

subsequent amendments), which the Constitutional Court has in the past found the strict

(cf. resolution SP. zn. IV. TC 369/01 of 21 November 2002. 2.2002; available on the

http://nalus.usoud.cz). Finally, not to be overlooked, or criminal

dimension of the protection of data collected by the tax authorities. The criminal code in

the provisions of § 180 regulates the criminal offence of unauthorized handling of

personal data and sets out the corresponding penalties for it.



75. The appellants argue that the confidentiality of individual

workers of the tax office is not a guarantee that the collected data is

do not get into the hands of unauthorised persons, and that it is necessary to count with a risk

the illegal misuse of retained data. In this way, however, it was possible to

argue in relation to virtually all of the collected data;

for example, even to the far more sensitive data on health status. Absolute

the guarantee cannot be granted, and never even sebedokonalejším legal

instrumentáriem. Risk of misuse of data are custom

human behavior as such. But not "automatically"

assume as the "default" behavior of the individual, but rather as

the exception, the blip is that from it. The legislator with the possibility of misuse of the data by the

employees of the financial management in General, edited by basics

treatment of information obtained in the administration of taxes and fees and

established and penalties for any violations of this policy. In addition, damaged

the body is not deprived of its right to claim damages against the person

It violates these principles. The Constitutional Court does not share the apel

the appellants on preventive waiving the collection of personal data for the purpose of

Elimination of potential risks associated with it, as this would have been the de facto

negated the essence of State administration, in this case, the functioning of the tax administration.



76. The appellants are further convinced that the impugned statutory provisions

does not stand up to the test of proportionality, nor with regard to their impact on the various

bodies in the material sphere. Argue that introducing the obligation for

every payer regardless of its size, and therefore the burden as well

both large and small businesses. Even this claim did not find the Constitutional Court

a close-fitting. The audit report, indeed, turns out equally to all mandatory

entities without differentiation of their size. However, the inequality

the appellants have in mind here is not caused by the legislative

"by setting" control messages, but the scope of activity for VAT purposes

required to submit the audit report that is by its very nature for each of

them different. This, however, also generally corresponds to the personnel and technical

their activities, which will be different for each of them. The payer

has a duty to register all the data related to its tax

obligations, that is, the data needed for the compilation of tax claims (with the

reference to the provisions of section 100 of the Act on value added tax), and

This range of evidence is proportional to the activities of the individual entrepreneur.

The "big" in the result, therefore, in fact, entrepreneur records the information in a larger

extent than entrepreneur "medium" or "small". The Constitutional Court is of the

the opinion that, even at this point the contested provisions of the value added tax act

in terms of the constitutional values conformity.



77. In respect of the applicant namítaného neústavního deficit penalties

related to the breach of the obligations relating to the inspection reports

in the first instance should be pointed out in the meantime adopted legislation with

effect from 29. 7.2016. The new provisions of § 101j and 101k Tax Act

the added value was inserted into the law already referred to Act No. 243/2016

Coll. first provides that the obligation to pay the fine for additional

submission of audit reports without prompting the tax does not arise if the

given calendar year is not for the payer to another delay in the submission of

the inspection report. The other provision allows tax wholly or

waive the fine if, in part, to the failure of the inspection report was

because of that you can with regard to the circumstances of the case

justify, without being bound by the proposal of the payer. From here, it is clear

the main reasons for which the applicants consider the provisions of § 101h

Act No. 235/2004 Coll., on value added tax, as amended by Act No.

360/2014 Coll., to be unconstitutional, the fixed penalties without the possibility of their

waiver or modification and associated inability to the administrative authority

individually assessed and a fine thing to moderate, have been affected by this amendment,

deleted. The only penalty to which the aforementioned institutes exclusion of developing

and immunity do not apply, are now the fine imposed by the tax

in the amount of up to $50,000 to the payer that based on challenges to the tax administrator

doubts have not changed or no incorrect or incomplete

information or through subsequent inspection reports; and fines

in the amount of up to 500 000 imposed on those who breach

related to the audit reports seriously undermined the Administration makes it difficult or

taxes. The concept of these financial sanctions, however, shows that their

Save the preceding the other delictual acts of the payer or shortcomings in the implementation

of its duties. In addition, the following penalties shall apply the provisions of § 101h

paragraph. 6 of Act No. 235/2004 Coll., on value added tax, as amended by

Act No. 360/2014 Coll., according to which in determining the amount of these fines is committed

the tax administrator that the penalty was disproportionate to the importance of

broken obligations and to the seriousness of the consequences for tax administration; in doing so,

into account in particular the level of cooperation on the part of the payer. Even in these

Thus the law sanctions foresees their moderation, taking into consideration all

the circumstances of the alleged misconduct on the part of the payer by the administrator

the tax. The Constitutional Court therefore concluded on neústavnosti sanctions

the mechanism of the modified provisions of section 101h of Act No. 235/2004 Coll., on income tax

value added tax, amended by law No. 360/2014 Sb.



78. With regard to the annulment of the provisions of § 101 paragraph. 1 of Act No. 235/2004

Coll., on value added tax, amended by law No. 360/2014 Sb, already

question (no) options for defense against the imposed fine in relation to the refusal of the

provide data on which the payer having to submit the audit report

considers that go above and beyond what is necessary for the administration of taxes, it is not enough

the current. The Constitutional Court, she nevertheless dealt with, and the appellants ' objections


nepřisvědčil. The Government in its observations on the draft stated that the requirement to

the provision of information in the inspection report can be denied. This refusal is

subsequently sanctioned by a fine in the amount of CZK 30,000 according to § 101h para. 1

(a). c) of Act No. 235/2004 Coll., on value added tax, as amended by

Act No. 360/2014 Sb. Against this decision is, however, permissible

the appeal, though does not have suspensory effect. Any negative decision

the appeal of the administrative body of the saved a fine can be disputed on the way

action in the administrative justice system, since it is not the law of judicial review

excluded. The promoters will reject this path in the reply, since according to their

opinion "is ridiculously from the perspective of practice". You can admit that the payer,

who decides to defy even actually unauthorized request

the provision of information in the surveillance reports (and the use of the Institute of remission

the fine is out with regard to the tax administrator's position into account, or does not

to correct), will typically be forced to pay the fine indicated first

(unless the appellate body could amend or revoke the decision of the

the administrative authority of first instance within the time specified for its payment, IE.

within 15 days-section 101h paragraph. 5 of Act No. 235/2004 Coll., on value added tax

values, as amended by Act No. 360/2014 Sb.) and only then do the above

the marked path. On the other hand cannot be put aside from the fact that

a fine in the amount of $30,000 for the payer does not constitute a compulsory to submit a

the audit report extremely large load. VAT registered person becomes

taxable person established in the territory of the country only when its turnover for

immediately prior to a maximum of 12 consecutive calendar

exceeds 1 000 000 CZK for months with the exception of the person who carries out only

exempt transactions without the right to deduction (§ 6 (1)

the law on value added tax). Therefore, in the opinion of the Constitutional Court

as a rule, will not be a body that would be in terms of its revenue and

his ability to pay the fine could be expected "strangling effect" in

the context of the following sanctions imposed. And this dimension must be taken into

account when assessing the conformance to the relevant legal provisions of the Constitution.



79. The Constitutional Court therefore from all of the above reasons, it did not find that landed should

the impugned statutory provisions (with the exception of the provisions of § 101, paragraph 1, and section

101g paragraph 1. 5) it was not possible to unload constitutionally Conformal manner.

Did not hit to the applicant referred to fundamental rights. The constitutional

the Court, therefore, under the provisions of section 70 para. 2 Act No. 182/1993 Coll., on the

The Constitutional Court, the application for annulment of the contested provisions of the Tax Act

value added in the rest of the rejected. As regards the proposal on priority

hear the case under section 39 of Act No. 182/1993 Coll., on the Constitutional Court, in

amended by Act No. 48/2002 Coll., has not complied with it, because for such a procedure

relevant grounds were found. You cannot ask for them or claim

plaintiffs, the impact of the contested provisions of the Tax Act

value added tax, or increasing the risk of abuse alleged options data

collected through the surveillance reports, as was

discussed above.



The President of the Constitutional Court:



JUDr. Rychetský in r.

Related Laws