The Constitutional Court found No 337 / 2019 Coll.
The Constitutional Court found of 12 November 2019 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
17.12.2019
337
FIND
The Constitutional Court
On behalf of the Republic
On 12 November 2019, the Constitutional Court decided under sp. zn. JUDr. Zdeněk Koudelkou, Ph.D., lawyer, based in Brno, Optatova 46, on the abolition of the provisions of § 72 paragraphs 1 and 2 of Act No. 280 / 2009 Coll., Tax Code, as amended by Act No. 458 / 2011 Coll., with the participation of the Chamber of Deputies of the Parliament of the Czech Republic and the Senate of the Parliament of the Czech Republic as parties to the proceedings and the Government of the Czech Republic as interveners,
as follows:
I. Paragraph 72 (1) of Act No. 280 / 2009 Coll., Tax Code, as amended by Act No. 458 / 2011 Coll., shall be repealed with effect from 31 December 2020.
II. The remainder is rejected.
Reasons
Subject matter
1. On 17 August 2017, the Constitutional Court received a proposal by a group of 19 senators of the Senate of the Parliament of the Czech Republic (hereinafter the "author ') to repeal the provisions of § 72 paragraphs 1 and 2 of Act No. 280 / 2009 Coll., Tax Code, as amended by Act No. 458 / 2011 Coll., on the date of the declaration of the finding in the Collection of Laws.
2. The application was made pursuant to Article 87 (1) (a) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and Article 64 (1) (b) of Act No 182 / 1993 Coll., on the Constitutional Court, on the contradiction with Articles 1 (1), 2 (4), 79 (3) of the Constitution and Article 2 (3), Article 4 (1) and (2), Article 10 (2) and (3) and Article 11 (5) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter).
Arguments of the appellant
3. The appellant is convinced that the scope of the compulsory disclosure of data in the forms issued by the Ministry of Finance pursuant to § 72 of Act No. 280 / 2009 Coll., Tax Code, as amended, (hereinafter referred to as the "Tax Code ') must at least be laid down by the law itself, not just by the form of the Ministry of Finance, and forms or models thereof should be issued in the form of a substatutory law. In the appellant's view of Article 11 (5) of the Charter, the principle of reservation of the law is that the legislator is to directly regulate all fundamental and essential tax obligations, including those relating to tax administration and tax control.
4. According to the appellant's contention, the contested provisions are unfounded in circumventing the rules on the control of the constitutionality and legality of executive implementing legislation and in violation of the principles of the democratic rule of law provided for in Article 1 (1) of the Constitution, as judicial control of the statutory provisions is part of that principle. It is necessary that form standards are bound by clear rules and that compulsory forms are issued (their models) as legislation. In the view of the appellant, their public publications in the Collection of Laws are ensured and their review by the Constitutional Court as well as by the general courts, as is the case, for example, for forms required for registration in the public register (e.g. commercial), as provided for by the Ministry of Justice Decree No. 323 / 2013 Coll., on the details of forms for the submission of applications for registration, amendment or deletion of data in the public register of legal and natural persons, the registration of trust funds and the registration of data on beneficial owners and the details concerning the method of remote access to data in the register of beneficial owners and certain data in the register of trust funds and the cancellation of certain notices, as amended by Decree No. 459 / 2017 Coll.
5. The applicant contests Article 72 (1) and (2) of Act No. 280 / 2009 Coll., the Tax Code, as amended by Act No. 458 / 2011 Coll., also on the grounds that on tax forms (forms) the tax entity generally provides data on itself, or on close persons (children, wives in case of tax benefits), whereas in the case of a control report, it is also data on other persons, from the point of view of the tax entity completely foreign persons.
6. The appellant is of the opinion that the provision of § 72 (2) of Act No. 280 / 2009 Coll., Tax Code, in itself, is not unconstitutional at first sight, but still considers that it is unconstitutional, as it is merely an appeal to the Ministry of Finance to not abuse the forms. According to the appellant, this appeal is the legislator's de facto resignation to its activities, as it should not appeal but determine the information required. The appellant considers that Paragraph 72 (2) of Act No. 280 / 2009 Coll., Tax Code, is completely inadequate from the point of view of setting the limit of the obligations of the legislator, from the point of view of the protection of personal data required in such forms and also from the point of view of the principle that taxes can only be established by law, which also applies to the essential elements of tax administration, not only substantive tax arrangements. According to the appellant's assertion, the devolution of this provision is therefore a necessary step in order for the legislator to re-establish this area in a constitutional fashion.
7. In support of its claims, the appellant pointed out the case where the Constitutional Court of the Republic of Austria annulled the transitional constitutional statement that the provisions of the Landesverband Public Procurement Act for the period from 1 January 2001 to 31 August 2002 were already found to be unconstitutional in accordance with the Constitution, even if the same provision at the federal level was already found to be unconstitutional by the Austrian Constitutional Court. The appellant also referred to the finding of the Constitutional Court of 23 July 2013 (Pl. ÚS 13 / 12 (N 126 / 70 SbNU 147; 259 / 2013 Coll.) on the application for annulment of part of the provision of Section 289 (2) of the Criminal Code authorising the Government to specify the concept of quantity greater than small and in particular the finding of plenary of the Constitutional Court of 6 December 2016 (Pl. ÚS 32 / 15 (N 232 / 83 SbNU 605; 40 / 2017 Sb.) on the lawfulness of the legislation by means of the Act 235 / 2004 Coll., on value added tax, as amended, (hereinafter "VAT Act ') and stated that the legal conclusions from this finding can also be extended to the Institute of the so-called form.
Proceedings before the Constitutional Court
8. The Constitutional Court pursuant to Article 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court") sent the motion to the Chamber of Deputies and to the Senate of Parliament of the Czech Republic as parties to the proceedings, as well as to the Government of the Czech Republic and the Ombudsman as authorised to intervene as interveners.
9. The Chamber of Deputies of the Parliament of the Czech Republic has merely summarised in its observations the course of the legislative process, which led to the adoption of the law, the provisions of which are proposed for annulment. It stated that the draft law was approved by the two chambers of Parliament in accordance with the constitutional procedure, the law was signed by the relevant constitutional authorities and duly declared. In conclusion, it stated that it was up to the Constitutional Court to examine the question of the inconstitutionality of the law and to decide on the proposal for its annulment.
10. The Senate of the Parliament of the Czech Republic described the legislation in question in its observations and stated that the contested provision of Paragraph 72 (1) has been contained in the Tax Code since the beginning of its effectiveness, i.e. from 1 January 2011, when the word "notification of change of registration data" was inserted after the word "registration." This change took effect on 1 January 2013. Paragraph 72 (2) has also been included in the tax rules since the beginning of its effectiveness, i.e. from 1 January 2011, and has not yet been amended. In the view of the Senate, it follows that the legal design of forms based on the model forms of the Ministry of Finance is an integral part of the tax rules since its adoption and has therefore been enacted as one of the elements of the material contained in this new legislation. The Senate further stated that it had already made several comments in the past on the course of the legislative process leading to the adoption of the new Tax Code, in particular in the context of the proposals pending by the Constitutional Court under the sp. zl. Pl. ÚS 18 / 14 of 15 September 2015 (N 165 / 78 of SbNU 469; 299 / 2015 Coll.) and under the sp. zl. ÚS 24 / 14 of 30 June 2015 (N 123 / 77 of SbNU 867; 187 / 2015 Coll.), and referred to these observations. Finally, the Senate stated that it was entirely up to the Constitutional Court to examine and rule on the application for annulment of the contested legal provisions.
11. By order of 11 October 2017 No 714 approved its entry into the proceedings, proposed the rejection of the application and, as an intervener of the proceedings, authorised Minister JUDr. Jan Chvovík to prepare the Government's observations in cooperation with the Minister of Finance. In detail, the Government stated that Section 72 of the Tax Code regulates the so-called form submissions for tax administration. According to its content, this proposal follows the finding of the Constitutional Court, sp. zn. Pl. ÚS 32 / 15, which was related to the Institute of Control Reports under the VAT Act. The Institute of Control Report was introduced into the field of value added tax by Act No. 360 / 2014 Coll., amending Act No. 235 / 2004 Coll., on Value Added Tax, as amended, and other related laws, with effect from 1 January 2016. The Constitutional Court found in sp. zn. The application submitted by a group of senators was largely rejected and the Constitutional Court complied with it only by repealing the provisions of Paragraph 101d (1) of the VAT Act (due to the expiry of 31 December 2017) and the provisions of Section 101g (5) of the VAT Act (at the time of the publication of the decision in the Collection of Laws). However, the Constitutional Court requested that the VAT Act at least in general define the range of data required in the control report form. Following the publication of this finding by the Constitutional Court, the Ministry of Finance initiated internal discussions on the concept and grip of the provisions of Paragraph 101d (1) of the VAT Act and concluded that, for legal certainty, the most appropriate solution in this exceptional case would ultimately be to resign from the standard legislative process and to use an amendment that could be raised on the premises of the Chamber of Deputies when discussing an appropriate government bill containing an amendment to the VAT Act. The above requirements were met by the draft Act No. 370 / 2017 Coll., on Payment, which also amended certain laws in connection with the adoption of the Law on Payment. The Government is convinced that the future wording of the provisions of Paragraph 101d (1) of the VAT Act meets the requirements of the Constitutional Court, as expressed in the findings of the sp. zn. In the view of the Government, the provision of Paragraph 101d (1) of the VAT Act was, in the form abolished by the Constitutional Court in the form of lex specialis in relation to the general rules of the tax system and, if it were not replaced by a new special regulation after its annulment, the general rules would automatically apply.
12. As regards the objection to a breach of the requirement of reservation of the law, the Government stated that the form of the tax claim was merely a means of fulfilling the tax obligation defined by the substantive rules of each tax law. The form itself does not constitute or specify the tax obligation or the obligation to state. In the absence of a tax claim form, the tax entity would not be relieved of the claim obligation, but would lack an instrument to facilitate its fulfilment. The content and structure of the tax claim form correspond to what the law requires to fulfil the tax obligation. As a result, the tax entity does not need to know the legal arrangements in detail, and its interaction with the tax administrator can only take place through the submission of the form (see Section 140 and Section 144 of Act No. 280 / 2009 Coll., tax authorities do not need to report the tax to the tax body and the payment notice or additional payment notice, respectively, is based only on the file, see Section 140 and Section 144 of Act No. 280 / 2009 Coll., Tax Code). Therefore, in the case of submissions which are material tax claims, it cannot be said that the power of a competent public authority may be exceeded in relation to the issue of forms of such submissions and the legal requirement for their use. The obligation to make the submission of a notification character and to mention the prescribed particulars shall again be laid down by law. The Act also sets out, with a greater or lesser degree of generality, the scope of the data which the tax entity is obliged to disclose to the tax authority, with the fact that their specificity is in some cases given by the relevant form. In principle, it is therefore necessary that the form should be within the limits of the legal mandinels for its issue, taking into account the fundamental principles of constitutional order and the rule of law. In general, those legal mandates are defined in different ways in the tax rules or in tax law, whereas it is in the case of form submissions that this determination is not made by an explicit calculation of the individual data required. With regard to both their quantity and their time-changing character, their specificity is entrusted to the forms. However, this does not mean that the possibility of requesting data through the form is impeccable, as the appellant claims.
13. In the view of the Government, those legal mandates for the scope of the data required by the forms can be derived from a number of provisions of tax law as well as from general legal constitutional principles (see Article 2 (3) of the Constitution and Article 2 (2) of the Charter). All these standards and principles must be read and interpreted as one whole, i.e. not in isolation. In the light of the above, it is therefore possible, according to the Government, to draw a general conclusion that an explicit list of the individual data that may be requested by means of the form may not be established by law if, in a particular case, this heading is within the legal mandates (defined with the necessary degree of generality), as set out above. Whether this is the case must be verifiable in a particular case by the usual interpretation methods and by the addressees of the legal standards to a reasonable extent, including in the light of established administrative practice. Therefore, if the specific form is such a "predictable form 'in the range of the required data, it can be considered to be constitutional. This is true - even with regard to the preference of a constitutionally consistent interpretation of legal standards - also for the legal provisions on the basis of which such a form is issued. It is precisely the predictability of the content of the form by the tax entity that has been highlighted by the finding of the Constitutional Court, sp. zn. Pl. ÚS 32 / 15, while it is also noted that the regulatory framework for this content can be established in a relatively general manner.
14. According to the Government, it can be concluded that a notification form is an instrument for fulfilling a certain legal obligation and may specify that obligation within the limits of the legal limits, but does not in itself constitute a tax entity. Therefore, where the law provides for a tax body to be notified, it is not in fact an extension of the range of data which the tax administrator has the power to obtain, but only the establishment of rules for the provision of such data, in particular the establishment of an active regime for the provision of that data by the tax entity. The collection of data by means of reporting obligations using forms that specify the range of data required is in many cases even more economical and, ultimately, less administratively burdensome than to a greater extent used to obtain data on an ad hoc basis, where the range of data required by the tax entity is neither known in its particular case.
15. On the objection of the impossibility of abstract judicial control of tax forms, the Government stated that the practice has shown that there are no excesses in issuing forms by the Ministry of Finance or tax administrators. In the event that excesses occur when a particular form is issued, the legislation contains the means by which a tax entity may seek protection of its rights. If the tax entity considers that the information contained in the form is required illegally, it is entitled to refuse to provide such information (not to be completed on the form). In such a case, the tax administrator will then be asked to complete the figure. The call is a procedural decision [§ 11 (1) (d) of Act No. 280 / 2009 Coll., Tax Code] and for this reason it is not possible to appeal against it (§ 109 (2) of Act No. 280 / 2009 Coll., Tax Code). As a result of failure to comply with the call, he may be fined (enforcing) according to § 247 (2) of Act No. 280 / 2009 Coll., Tax Code, as amended by Act No. 458 / 2011 Coll. The decision of the tax administrator on the fine is a substantive decision and may be appealed against. In the event of failure of the appeal authority, the appeal against the administrative decision may be brought before the court.
16. The Government considers that the purpose of form submissions is not to circumvent the legislative process, to exclude the possibility of defending against excesses, or to "facilitate the work of the public authority," as the appellant seeks to deduct. The use of the form generally contributes to standardisation, transparency, predictability and easier processing of the submission. The principle that the law lays down a general framework for the range of data required, while their clarification is left to the form, leads to a reduction in the case-law and rigidity of the legal regulation, which is in practice one of the causes of the creation of so-called loopholes in the law. The requirement to transform the range of required data into a taxative list as provided for in the law or under the law would lead to a strengthening of the hypertrophy of law and a limitation of the response period for the modification of such a list in the light of the formal procedure of the usual legislative process. At the same time, such a solution would not bring any practical benefit to tax entities, as their ability to resist the excessive requirements of the tax administrator for the provision of data would be virtually identical to the current situation. On the contrary, such a procedure would be against the regularly sounding requirement for greater simplification and clarity of tax legislation.
17. In conclusion, the Government summarised that in its proposal the appellant sought the annulment of the provisions of § 72 paragraphs 1 and 2 of Act No. 280 / 2009 Coll., Tax Code, as amended by Act No. 458 / 2011 Coll., primarily in order to avoid their subsidiary application to the Institute of Control Reports under the VAT Act, although the issue of the data required in the form of the Control Report will be dealt with by explicit legal regulation under the VAT Act from 1 January 2018. From this point of view, therefore, the proposal has become irrelevant, despite the fact that the proposing Senators, as members of the legislature, have themselves been able to address the alleged inadequacy of the regulation of control reports by the relevant legislative proposal. The Government took the view that compliance with the appellant's proposal, in view of the extent of its impact, would mean significant interference in the legal certainty and legitimate expectations of tax entities and, at the same time, would mean significant interference in the practical exercise of tax administration, both on the part of tax entities and on the part of tax authorities. As regards the general assessment of the constitutional conformity of the contested provisions of the tax rules, it can be concluded that the modified Institute of Form Submissions is a traditional and widely used instrument for the administration of taxes and other public law agendas. In the view of the Government, it is possible to conclude in the spirit of the constitutional interpretation of the provisions in question that the issue of the relevant forms and the specification of the required data by the Ministry of Finance can be considered to be consistent with the constitutional order of the Czech Republic if such a move is within the legal limits. These limits are mainly due to the need for data for tax administration, the fundamental principles of tax administration, the nature and content of the legal obligation which is fulfilled by means of the form and the purpose, purpose and nature of the specific submission. If these limits are respected, the form becomes appropriate and predictable from the point of view of tax entities. Any requirements beyond this would then have to be specified by legislation, which is the case, for example, of the above-mentioned inspection reports under the VAT Act.
18. The Ombudsman informed the Constitutional Court by letter of 21 September 2017 that she would not use her right to intervene.
19. The Constitutional Court noted the observations of the Chamber of Deputies and did not send a reply to the appellant, if any, in the light that it did not contain any relevant facts.
20. The appellant responded to the observations sent to the Senate and the Government by a reply in which it did not comment on the observations made by the Senate and stated that it did not agree with it and insisted on the arguments put forward in the original proposal. In the appellant's view, the fact that the statutory arrangements for the value added tax control report have been amended in the meantime does not affect the assessment of the contested tax rule. The appellant referred in particular to paragraph 10 of the Government's statement that it was possible to suspend itself from the approach of proposing senators who criticise the Ministry of Finance for its alleged passivity in the implementation of the amendment of the law, although they themselves are members of the Parliament of the Czech Republic and have a legislative initiative that would enable them - if they found the power-making approach inappropriate - to present their own draft legislative solution. The appellant argued that the proposing Senators were opponents of the control report as a whole and therefore sought to remedy by voting against the relevant government proposals. On paragraph 39, in which the Government argued that forms were to be drawn up in a similar manner to those of the Order, the appellant stated that, in its view, the Government was essentially right by it to give the appellant that the form could be made up as an annex and as part of a substatutory legislation, thereby ensuring the possibility of abstract control of standards. By abolishing the abstract control of the standards, the appellant claims that the rights of a parliamentary minority would be weakened. If the form has an impact on an unaddressed and very wide population of the state, abstract control of the standards should be ensured as part of the executive control mechanisms. On the Government's objection that the contested provision has been part of the rule of law for a longer time and does not cause problems, the appellant stated that this does not mean that it cannot be annulled by the Constitutional Court.
Oral proceedings
21. The Constitutional Court has considered, in accordance with the provisions of Paragraph 44 of the Law on the Constitutional Court, that there is no need for oral proceedings in the case, since it would in no way contribute to a further or further clarification of the case than how it became aware of it from the written acts of the appellant and the parties and interveners. The fact that the Constitutional Court did not consider it necessary to carry out the taking of evidence also justifies the failure of oral proceedings.
Active procedural legitimacy and management conditions
22. The Constitutional Court notes that the application pursuant to Article 87 (1) (a) of the Constitution has been submitted by an authorised body pursuant to Article 64 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court and contains all the required formalities by the Law on the Constitutional Court. The application thus fulfils the conditions for the proceedings before the Constitutional Court, the Constitutional Court has jurisdiction to discuss it and has therefore taken a formal view.
Assessment of the constitutional conformity of the legislative process
23. In the procedure for the control of standards, the Constitutional Court pursuant to the provisions of § 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., also ascertains whether the contested law was adopted and issued within the limits of the Constitution established competence and by the constitutional procedure. The appellant raised no objections to the legislative procedure. In the present case, the Constitutional Court found, from the observations of the parties to the proceedings and of the House of Prints publicly available (on the website http: / / www.psp.cz), that the contested provisions of the Tax Code were adopted within the limits of the Constitution laid down by competence and in a constitutional manner.
Derogation of the contested provision
24. Paragraph 72 (1) and (2) of Act No. 280 / 2009 Coll., Tax Code, as amended by Act No. 458 / 2011 Coll., reads as follows:
(1) An application for registration, a notification of a change to registration data, a sound tax claim or an additional tax claim may be made only on a form issued by the Ministry of Finance or on a print-out from a computer printer which has the data, content and layout of the data identical to that form.
(2) Only the data necessary for tax administration may be required in the forms and annexes indicated therein which form part of the application. "
Relevant legal arrangements for tax registration and tax claims
25. The contested provision of § 72 paragraph 1 of Act No. 280 / 2009 Coll., Tax Code, as amended by Act No. 458 / 2011 Coll., obliges the tax entity to submit an application for registration and notification of a change of registration data as well as a proper tax claim or additional tax claim on a form issued by the Ministry of Finance. The tax rules do not directly determine the content of the submissions on the forms, only in § 72 (2) they provide that only the information necessary for the administration of the taxes may be required in the forms.
26. Registration procedure is a special tax management procedure resulting in registration of tax entities; is not part of the tax procedure within the meaning of Section 134 of Act No. 280 / 2009 Coll., the tax rules, although they are very closely related to it. It is intended to obtain an overview of tax entities expected to make tax claims. Only the form of administration is regulated by the Tax Code in Section 72. The content of the submission (i.e. the "prescribed data required for tax administration 'referred to in § 126 of Act No. 280 / 2009 Coll., the Tax Code, as amended by Act No. 458 / 2011 Coll.), does not provide for the tax rules and leaves their clarification to the consideration of the Ministry of Finance, with the general limitation of § 72 (2) of Act No. 280 / 2009 Coll., the Tax Code. The registration procedure is generally provided for in Sections 125 to 131 of the Tax Code (corresponding penalties in Sections 247 and 247a of the Tax Code). Specific conditions for registration and certain other conditions for registration are laid down in special tax laws.
27. The legislative abbreviations "due tax assertions" and "additional tax assertions" are primarily defined in Section 1 (3) of Act No 280 / 2009 Coll., Tax Code, which reads: "(3) The basis for the correct determination and determination of tax is the tax return, report or bill (hereinafter referred to as" due tax assertions ") and the additional tax returns, subsequent reporting or additional accounting (hereinafter referred to as" additional tax assertions ") submitted by the tax entity." The concept of "sound tax claim 'is further defined in § 135 to 140 of the Tax Code, in terms of the obligation to submit a proper tax return and the maturity of the tax (§ 135), the time limits for filing the tax return (§ 136), the time limits for reporting and billing (§ 137), the correct tax return and the correct bill (§ 138), the documents for defining the tax (§ 139) and the payment notice (§ 140). The term" additional tax return "is defined in section 141 to 144 of the Tax Code. The special arrangements for each form of sound tax claim and the additional tax claim contain individual tax laws. Act No. 586 / 1992 Coll., on Income Taxes, as amended, in Part Four contains specific provisions on the collection of income tax, and for each form of income tax, it further provides for, for example, the creation of an obligation to submit a tax return or certain specific elements (content) of the tax return (cf. § 38g of the cited Act). Similarly, the VAT Act, in which Article 101d (1), after its annulment, is found in plenary at the Constitutional Court sp. zn. Pl. ÚS 32 / 15, restates that in the control report, the payer is required, in addition to the general requirements of the submission, to indicate (a) the information and contact details of the payer, (b) the information relating to the performance and remuneration, where such transactions and fees give rise to an obligation to submit a control report, (c) the data relating to the exercise of the right to deduct tax, and (d) the identification details of the customer or supplier. These headings correspond to the data contained in the control reports before the amendment, but unlike earlier legislation, these headings are now explicitly mentioned in the VAT Act.
Substantial assessment of the proposal
28. In essence, the appellant's claim is that the provisions in question in the tax rules authorising the Ministry of Finance to issue forms for tax submissions are contradictory to constitutional rules, in particular:
• Article 2 (4) A constitution whereby every citizen can do what is not forbidden by law and no one must be forced to do what the law does not impose,
• Article 79 (3) of the Constitution, according to which ministries may legislate on the basis and within the limits of the law if they are empowered by law to do so,
• with Article 2 (3) of the Charter, according to which everyone can do what is not prohibited by law and no one must be forced to do what the law does not impose;
• with Article 4 of the Charter, according to which obligations may be imposed only on the basis of the law and within its limits and only with respect to the respect of fundamental rights and freedoms and the application of the provisions on the limits of fundamental rights and freedoms must be subject to examination of their substance and purpose,
• with Article 10 (2) and (3) of the Charter, according to which everyone has the right to protection against unauthorised interference in private and family life and from unauthorised collection, disclosure or other misuse of personal data;
• Article 11 (5) of the Charter, according to which taxes and charges can only be imposed on the basis of the law, as the constitutional principles cited circumvent them by allowing the government, without any legal authority, to effectively legislate.
29. The appellant's argument is based on the claim already made in the proposal for the annulment of the provisions of Paragraph 101d (1) of the VAT Act, which was upheld by Rule II of the decision of the Constitutional Court sp. pl. ÚS 32 / 15, which concerned "prescribed data 'in the inspection report, namely the allegation of infringement of the principle of reservation of the law on the imposition of obligations.
30. On the contrary, the Government considers that the issuing of forms by the Ministry of Finance according to the authorisation contained in the contested provisions of Paragraph 72 of the Tax Code is not a derived standard of execution within the meaning of Article 79 (3) of the Constitution; In other words, it is not the creation of statutory legislation because it does not establish any new obligations, taxes or charges that would no longer be laid down by law or by law, and therefore the contested provision of the Tax Code cannot be regarded as contradictory to constitutional order.
31. The Constitutional Court dealt with the issue of the constitutionality of the legislation by means of the inspection report in the VAT Act in detail in the find sp. v. Pl. ÚS 32 / 15, to which the appellant referred.
32. As already noted above, the tax rules in Section 126 do not provide for the content of the registration application and the notification of the change of registration data, i.e. the "prescribed data needed for tax administration ', and their determination leaves to the discretion of the Ministry of Finance. However, the failure to provide these prescribed data underlies a relatively sensitive penalty in Section 247a of the Tax Code.
33. This legal regulation is the same as the (previous) legal regulation of the formalities and the procedure for submitting the control report in Section 101d (1) of the VAT Act, which was repealed on 31 December 2017 by the quoted decision of the Constitutional Court, sp. zn. Subsequently, the formalities and the procedure for submitting the inspection report in the VAT Act were adapted by the law to provide for additional (except general) formalities and the procedure for submitting the inspection report (Act No 371 / 2017 Coll., amending certain laws in connection with the adoption of the Payment Act; This Regulation shall be binding in its entirety and directly applicable in all Member States.
34. In the find sp. zn. Pl. ÚS 32 / 15 The Constitutional Court stated in paragraph 69 that the appellants (group 21 of the Senators) objected to a breach of the principle of reservation of the law on the imposition of obligations in relation to the provisions of Paragraph 101d (1) of the VAT Act. To the appellant, the principle of reservation of the law was that "no one must be forced to do what the law does not impose 'and that" obligations may be imposed only on the basis of the law and within its limits' (Article 2 (4) of the Constitution, Article 2 (3), Article 4 (1) of the Charter). The contested provision required the payer to indicate in the control report "the prescribed data needed for tax administration '. The Constitutional Court concluded that" the law [on VAT] does not specify the prescribed data' in any way and, by virtue of the provisions of § 72 paragraphs 1 and 2 of Act No. 280 / 2009 Coll., the Tax Code, as amended by Act No. 458 / 2011 Coll., leaves the Ministry of Finance to specify these data in the electronic control report form. And since the duties are defined in the law very precarious and widely, their specificization is at the Treasury Department... It can be agreed with the appellants that the executive power is so entrusted to power, which according to the Constitution belongs only to legislative power. The need for a legal definition in this case is all the more urgent that the payers must provide data regularly and electronically. In one place and at virtually one moment so the state collects an enormous amount of information. And it is this fact that makes all this information much more sensitive and much more valuable... The Constitutional Court therefore concludes that the law must specify at least the range of data that the payer must communicate. This does not preclude any legal authorisation (Article 79 (3) of the Constitution) to determine specific individual data by the Ministry of Finance. However, this would have to happen in the form of legislation. This is the only way to ensure the predictability of the data that the State will require from the payer. There is certainly no possibility of a possible abstract check of constitutionality by the Constitutional Court, which is excluded in the case of a mere form. "
35. These conclusions can also be drawn on the proposal for the annulment of § 72 paragraph 1 of Act No. 280 / 2009 Coll., Tax Code, as amended by Act No. 458 / 2011 Coll. In the case under examination, the legislator laid down certain requirements and rules which are only covered by the form issued by the Ministry of Finance and did not empower the Ministry of Finance to issue a statutory law. At the same time, the legislator was not able to determine which data could be requested in the forms.
36. In this context, the Constitutional Court refers, for example, to the provisions of § 12 (6) of Act No. 159 / 2006 Coll., on Conflict of Interest, as amended, according to whose jurisdiction: "Notifications shall be made in the structure and format laid down by the Ministry of Justice by Decree. The Judges shall submit a notification using a form the structure and format of which shall be laid down by the Ministry of Justice by decree. '; This area, with its nature, is closer to the tax assertions on the basis of which the personal and property ratios of the taxpayer are examined or when it grants its property status, and it has also been established by a substatutory regulation. For comparison, the wording of Section 38g (3) of the Income Tax Act, which states:" In respect of the income tax on natural persons, the taxpayer shall indicate in the tax return all the income which is subject to tax, other than exempt income, income on which the tax is levied at a specific rate of tax if he does not apply the procedure laid down in Section 36 (7) or (8). In the tax return, the taxpayer shall also indicate the amount of the tax rebate under § 35ba and the tax advantage under § 35c and 35d. If income from dependent activities is part of taxable income, it shall be evidenced by a document issued in accordance with § 38j (3).' Thus, contrary to the contested provision, the legislator has properly defined the scope of the data required of the taxpayer.
37. As in the finding of sp. zn. In the tax rules, the whole of the fourth Title is devoted to the question of the protection and provision of information, the provision of which Article 52 (1) provides that official persons and persons involved in the administration of taxes are bound by the obligation of confidentiality as to what they have learned about the circumstances of other persons when managing taxes.
38. In the decision of 22 March 2011 sp. zn. The related powers granted to competent authorities must be strictly defined in order to provide individuals with protection against arbitrary interference in their rights. In the already mentioned finding sp. zn. Pl. ÚS 32 / 15 The Constitutional Court then stated that it was difficult to imagine an effective tool of the tax administrator, which would not collect data on transactions of tax entities which by their nature are linked to a greater or lesser extent to the collection of certain personal data [here the Constitutional Court referred in particular to Sections 11 (1) (b) and (c) of the Tax Code]. However, the scope of the data required of a tax entity must be specified by law, provided that the specific data can be determined in the form of a statutory law.
39. The Constitutional Court considers that nothing can be objected to the Institute of the prescribed form from the point of view of constitutionality, but if the completion of the form is imposed as an obligation, its content must be laid down by law. In the case of a form, the form of which is not given by law or by statutory law, there may be no abstract control of the constitutionality of the obligations imposed.
40. Following the grounds set out in the findings sp. zn.
41. The Constitutional Court was therefore left with no choice but to state that the contested provision did not fulfil the conditions laid down in the constitutional order for imposing an obligation on the tax body to communicate in the application for registration, or in the notification of a change to the registration data and in the correct or additional tax claim, the data necessary for tax administration; This does not preclude any legal authorisation from the Ministry of Finance pursuant to Article 79 (3) of the Constitution.
42. As regards the effects of the annulment, the appellant proposes its annulment on the day of the publication of this finding in the Collection of Laws. The Constitutional Court takes the view that 31 December 2020 provides the legislator with sufficient scope to adopt adequate constitutional consistent legislation.
43. For the sake of completeness, the Constitutional Court recalls that the Government submitted a draft law to the Chamber of Deputies on 28 August 2019 amending the tax rules (House Press 580 / 0). The discussion of the press was included in the 35th meeting (15 October 2019). It contains, inter alia, an amendment to the contested provision of Paragraph 72 (1), in which the words "sound tax assertion or additional 'are proposed to replace" or'. The explanatory memorandum states on this amendment that it is an adjustment following a change in terminology in the case of tax claims (see paragraphs 3 and 4 of Section 1 of the Tax Code).
44. The Constitutional Court, on account of the formal requirements of the rule of law pursuant to Articles 2 (4) and 79 (3) of the Constitution and Article 2 (2) and (3), Article 4 (1), Article 10 (3) and Article 11 (5) of the Charter, has annulled the Tax Code, as amended by Law No 458 / 2011 Coll.
45. If the assessment of the non-constitutionality of Section 72 (2) of Act No. 280 / 2009 Coll., the tax rules according to which it is possible to require only the data necessary for the administration of taxes in the forms and attached annexes which are included therein, or the arguments of the appellant, or from the very wording of Section 72 (2) of Act No. 280 / 2009 Coll., the tax rules cannot be inferred from any non-constitutionality. This provision, on the other hand, guarantees that something not necessary for tax administration cannot be included in such a form. The Constitutional Court therefore rejected the appellant's proposal under Paragraph 43 (2) (a) in conjunction with Paragraph 43 (2) (b) of the Constitutional Court Act as a proposal manifestly unfounded.
President of the Constitutional Court:
v. JUDr. Fenyk v. r.
Vice-President
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Regulation Information
| Citation | The Constitutional Court found No 337 / 2019 Coll., on the application for annulment of § 72 paragraphs 1 and 2 of Act No. 280 / 2009 Coll., Tax Code, as amended by Act No. 458 / 2011 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 17.12.2019 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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