The Role of Administrative Judge in Tax Disputes

The purpose of the questionnaire was to find out the similarities and the differences between the systems of the judicial control over administrative decisions in tax cases. This summary consists from the answers of following countries : Ukraine, Finland, Hungary, Italy, Slovenia, Germany, Lithuania, Slovak republic, Luxembourg and Austria.

1. General Facts on Proceedings for the Judicial Review of Administrative Acts

against which administration act the legal action is allowed

Generally the legal action is allowed against final administrative acts with obligation nature (concerning tax affairs), even against a decision on the approval of an inspection and there is also a possibility of a remedy action before the director of the administration.

what is a time frame in which the legal action must be filled

The most common time frame is 30 days after serving of the administrative act, by which proceedings were concluded there are also longer terms – up to 5 years in one example 20 days

2. Grounds for a Complaint

The grounds for the complaint are similar ; legal facts and legal norms (facts and points of law), reasons must be presented (in writing) ; the plaintiff can ask for total or partial annulment.

3. Compliant against the Absence of a decision

if yes : what are conditions

In 7 countries the complaint against the absence of a decision is possible ; it is not possible in Finland and there is a slightly different situation in Austria where in case that the tax office does not decide within 6 months, tax payer can file application of “devolution”, if tax office does not decide within the granted period (usually 3 months) the competence to decide goes to the Independent Financial Biro (IFB). The time for waiting for the decision varies. 

4. Parties to Proceedings

Plaintiff (also a complainant – tax payer) - a party whose right or justified interest is directly affected by administrative resolution and the defendant (subject of the power – tax administration) ; also affected persons ; and also the public prosecutor (when the person is not able to protect his own rights).

compulsory legal representation ; if yes for which legal actions

Mandatory legal representation by the advocate only before the appeal court and the Supreme Court ; sometimes depends on the value of the case ; for the first instance legal representation is not compulsory ; parties can represent themselves on the first instance, if they have a person who represent them, the person should be qualified ; also there are countries with no compulsory legal representation.

5. The Organization of the Court

name of the court
specialized (short description : direct/indirect taxes ?)
non specialized ; are there specialized chambers or specialized judges

• UKR - Volyn administrative judicial district court, non-specialized, tax chamber of the court consists of 3 judges ;
• FIN – 12 administrative courts (organized geographically, not specialised courts, but specialised chambers and judges) :
• H – 20 county courts (19 counties and capital court, Budapest), no administrative courts, but special division of ordinary court carries out juridical review of administrative decisions. In Metropolitan Court every judge is specialized in individual legal fields, no specialised tax courts ;
• I - first instance is the Provincial Tax Commissions, court of appeal the Regional Tax Commissions and at the highest level, only for questions of law, the Court of Cassation.

Tax Commissions are composed of honorary members from the following categories : magistrates, public officers, officers of the financial police, auditors, tax consultants, engineers, architects and so on ; at the same time these members exercise their proper institutional functions or professions. Some particular cases (execution of a condemnation sentence against tax administration, oppositions against tax executions) belong to the jurisdiction of the civil Judge, whereas the administrative Judge decides the claim for annulment of tax regulations 

• D – Finanzgericht ; all kinds of taxes and customs ;
• SLO - The Administrative Court of the Republic of Slovenia has its seat in Ljubljana and three external departments. External departments have jurisdiction according to the residence or seat of the complainant. Taxation cases, except cases concerning personal income tax and cases concerning inheritance tax, tax on gifts, property tax, and gambling tax, are decided by the Administrative Court in Ljubljana which has two departments which specialize in taxation cases, namely : a department for public finance, which decides in cases concerning direct taxes and which employs six judges and one legal assistants, and a department for customs and other taxes (VAT), which employs three judges and one legal assistants ;
• LIT - Vilnius regional administrative court – court of first instance (additional competence of this court) and Supreme Administrative Court – appellate court. No specialised tax courts. An administrative court decides on both direct and indirect tax cases. Commission on Tax Disputes are the only specialised body in hearing tax disputes in Lithuania (pre-trial stage). Officially – there is no specialisation neither in chambers, nor specialised judges in tax matters. In practice – there is a specialization to some extent in Supreme administrative court ;
• SVK – district courts (57), regional courts (8) and the Supreme Court (Bratislava) ; Judges in charge of administrative cases are reappointed for this purpose annually into panels performing administrative justice on the basis of the Court Assignment Docket. Judges appointed to administrative divisions of regional courts or the Administrative Division of the Supreme Court of the Slovak Republic have the same status as other judges of general courts and enjoy no special benefits, have no special characteristics and do not form any specific category of judges ;
• LUX - tribunal administratif with a general competence in all administrative matters ; but only competent for direct taxes ; the competence for VAT and excise duties is for ordinary courts (for historic reasons) ; no specialization of judges,
• A – Independent Finance Board ; responsible for all tax affairs, customs, penal proceedings ; there exist specialised panels (e.g. for fees) as well as specialized judges (e.g. for VAT).

So, out of 10 countries, in 5 there are no non-specializing what so ever in the field of taxation law, in 3 countries there are specialized courts and 2 no specialized court, but specialized chambers.

6. The Composition of the Court

panels
single judge

Generally the panels of 3 judges ; there are cases for single judge too (of minor importance or for procedural matters), complex cases, panel of 5 judges, no single judge in tax cases. 

7. Preliminary Injunction

legal conditions

On the request of the party or ex officio, together with the claim ; in cases of irreparable damage to the complainant, (obvious risk of injury to the rights, freedoms and interests and if there are obvious signs of illegality of the decision) ; considering the public interest and the benefits of the opposing parties in accordance with the principle of proportionality, effecting till final decision

time frame for the decision

Different time frame : from immediately 1 day to 7 days or in a country were decision must be reached within 6 months (if not, a complaint about the breach of the obligation to reach a (timely) decision can be filed).

Model Proceedings

Model proceedings are a special type of proceedings for the judicial review of administrative acts intended in instances where there exists a large number of connected or related cases so that the proceedings are simplified and decisions in individual cases adopted in a shorter time. The court may decide to conduct model proceedings if more than twenty complaints were lodged against administrative acts in which the rights or obligations are based on the same or a similar state of the facts and the same legal basis. In such instances, the court conducts the proceedings (only) on the basis of one complaint, and stays the other proceedings until the decision issued in the model proceedings becomes final.

The objective of model proceedings is the economy and acceleration of proceedings. After the decision issued in the model proceedings is final, the court decides on stayed proceedings without a hearing, however, only if the state of the facts and the legal nature of the complaints are not essentially different than the state of the facts and legal nature of the complaint decided in the model proceedings. The model proceedings are reasonable only in cases, which must be decided, in a main hearing. In such cases the court namely conducts a main hearing only in the model case ; no – D ; no – LIT ; no – SVK, no – LUX ; no – A

Deciding at a Main Hearing or in a Closed Session

In 5 countries out of 10, oral hearing is a standard ; in others there is a possibility of an oral hearing, but not generally executed.

UKR - public hearing, closed session only because of secretes protected by law, the decisions are declared in public ;
FIN – main session – closed session ; 
H – oral hearing ; 
I – generally in closed sessions, without the parties being heard, but can be asked by the party and oral hearing is processed after the deliberation in closed session follows ; 
SLO – oral hearing, but exemptions ; 
D – in principle decisions require a hearing ; 
LIT – in closed sessions, decision is announced orally ; 
SVK – oral hearings (in closed hearing for secret matters, before appellate courts and at the Supreme Court in closed sessions), judgements are pronounced by courts in public ; LUX – oral hearings after which follows the deliberation (delibere) in closed session ; 
A – hearing upon the request of the appellant, if the member of the panel considers it necessary, upon the decision of the panel.

The (Non)Participation of Experts in Proceedings and the Taking of Evidence

Experts are part of the proceedings ; they can be nominated by the court or proposed by the parties, only in Slovak republic court do not require the participation of experts

The Manner of Deciding of the Court of First Instance

Panels adopt the judgement or an order by a majority vote ; judgement is pronounced publicly with short explanation of reasons. In written decision there is always an explanation of legal and factual reasons, as well the opinion of the court. The administration is biding to the opinion of the court.

Costs

Legal costs and costs of the proceedings ; the main rule is – the losing party bears the costs of the successful party – lump sum is reworded to winning party (SLO).

Legal Remedies Against Judgements of the Court of First Instance

An appeal ; the request for leave to appeal, review revocation, a revision, but no appeal (or very limited), an appeal which must be admitted by the Finance Court.

Court of the Legal Remedy

Appeal Court, High Administrative Court of Ukraine, Supreme Court of Ukraine ;
the Supreme Administrative Court (30% of tax cases) ; 
Supreme Court, the Regional Tax Commission ; Supreme Court ; 
Federal Finance Court (Bundesfinanzhof), Supreme Administrative Court ; the Slovak Supreme Court ; Cour Administrative, constitutional or administrative Court.

Statistics for year 2008

a) How many cases dealing with tax issues (income tax, corporate tax, capital gains tax, VAT and similar taxes) have been filed in your court during the last year for which the information is available ?

b) How many decisions in tax cases were rendered by your court during that period ?
c) What is your best approximation of the percentage of all cases dealt with by your court during that period that involved tax issues ?

UKR- Volyn started on the 25th of November 2008, during 2009 751 cases FIN – 900 cases and 1/3 of all are tax cases
H - /
I – regional Tax Commission exercise tax jurisdiction only
SLO – 480, 716, 15%
D – taxation court
LIT – 191 cases in Supreme Administrative Court – 10%
SVK – app 169 cases, 85 rendered, 32%
LUX – 15, 16, 4-5%
A – 11.051 cases, 9311 decisions, 100%.