INTERACTION BETWEEN LITHUANIAN
AND AUSTRIAN LEGAL SYSTEMS:
TAX DISPUTE RESOLUTION PROCEDURE
(also in due consideration of the context of European Union)
Milda Stankevičiūtė*
Salzburg University, Austria
Abstract. There is no doubt that different legal systems nowadays do interact between each other – both mandatory, unavoidable and voluntarily. Comparative analysis of couple or several legal systems may be a simple research of the existing interaction, but as well a great provocation for future interactions.
The suggested topic for the conference shall not only describe the existing tax dispute resolution pro
-cedures in Lithuania and Austria – since they could be considered similar – but also uprise and discuss both theoretical and practical issues. The point of interest does not only end with the two mentioned systems, but as well includes the overview of the influence of international provisions over this procedure.
Short excursus: the continous discussions due to the existing procedures – how proper organized they are or how they might be changed – were common both to Lithuania and Austria already since long time. One proposal, which may also be find in lithuanian legal literature, had success in Austria and will take force with 2014: In November 2012 the Committee of the National Assembly did accept the establishment of the Federal Court of Finance since 1st of January, 2014. The new Court should replace the Independent Fiscal Senate and at the same time is the part of by the same Assembly initiated Reform of Administrative Jurisdic
-tion. With this change the appeal stages will only be two-stage. Reasons, material changes and expected consequences of this Reform may provocate an interesting discussion.
The element of internationality shall enable to reveal disadvantages and problematics, as well as to gain the good examples of practice in this field. Presentation shall be based on analysis and interpretation of local legislation, case law, international laws and principles, jurisprudence and of course the ongoing discussions.
Keywords: tax, dispute, taxpayer, finance court
INTRODUCTION
Taxpayers’ rights are guaranteed by the settlement of tax disputes between taxpayer and tax administrator or his officer.1 Seen in general context Austria and Lithuania use a similar system of resolving tax disputes. It shall be noted that systems are not analogical, but basically can be attributed to one type of regulation (the situation will change in 2014 when Independent Finance Senate in Austria will be transformed to a specialized Finance Court2).
* PhD student of Salzburg University, Austria; Master of Law, Vilnius University, Lithuania. 1 Marcijonas Sudavičius. `Mokesciu teise`(Vilnius: Teisinės informacijos centras, 2003) p. 103
2 To Austrian point of view there is no essential difference between the present Independent Fiscal Senate and the future Financial Court. The main change shall be that the Finance Court will meet the qualities of a court as it is defined in
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One size does not fit all which means that no single tax dispute resolution model exists that could be applicable to all countries. According to that, it is only possible to try to link the existing proceedings to very general internationally recognized principles and recommendations based on gathered practice.
Comparative analysis is the best way to upraise both theoretical and practical issues of tax dispute resolution procedure, to show the best practical examples and solutions. It shall also test the compatibility of procedural organization and rules with international principles, especially in the light of the proper protection of the taxpayer’s rights.
PROCEDURE OF TAX DISPUTE RESOLUTION
Both Austrian and Lithuanian legislator have decided to implement the specific dispute reso
-lution procedure for tax matters, which means, that a taxpayer has no right to apply to the admi
-nistrative court before he has exhausted extra-judicial way to resolve a dispute.3
The Commission on Tax Disputes under the Government of the Republic of Lithuania is a pre-trial tax litigation institution, hearing tax disputes between a taxpayer and the tax adminis
-trator.4 It is a public legal entity funded from the state budget. The purpose of the Commission is to examine objectively an appeal filed by the taxpayer and make a lawful and substantiated decision.5 It is said that the Commission, as special institution for consideration of tax disputes, in accordance with its process activity and according to the requirements for the members of it, is similar to a specialized court.6 One may find different opinions in literature whether this institution should be reorganized, removed in general or a specialized court for tax issues should be established instead.
Analogically the Independent Fiscal Senate (UFS) is responsible for handling appeals in tax cases in Austria.7 It decides on appeals and complaints against decisions of a financial authority in tax, financial aid or criminal matters or against decisions of the customs office in customs or (minor) financial crime cases. In 2012 the Committee of the National Assembly did accept the establishment of the Federal Court of Finance since 1st of January, 2014.8 The new Court should replace the UFS
the Austrian Constitution. The competences of the newly established Finance Court however shall remain pretty much the same as the ones of the Independent Fiscal Senate. See further for the definition of a court.
3 In accordance with Lithuanian legal works and legislation, tax dispute resolution procedure, before it has reached a court, is called pre-trial. This means that a dispute is resolved by a specific institution which is not a court. The problem is, as it will be described further, that there are several options of how the “court” could be defined. When we talk about the pre-trial procedure in the frames of this paper, “pre-trial” shall mean procedure at the Commission on Tax Disputes or at the Independent Fiscal Senate, since they are not considered to be “courts” on the level of national constitutions. 4 Official website of the Commission on Tax Disputes, Online under http://www.mgk.lt/
5 Art 148 Law on Tax Administration of the Republic of Lithuania (English version) 6 Marcijonas Sudavičius. `Mokesciu teise`(Vilnius: Teisinės informacijos centras, 2003) p. 108 7 Tax Appeal Reform Act, No. 97/2002
8 Langheinrich, ‘Der langersersehnte Abschluss der Integration im abgabenbehördlichen Rechtsmittelverfahren” (Fi-nanz Journal, Grenz Verlag 7-8/2012) p. 233-234
and at the same time is the part of by the same Assembly initiated the Reform of Administrative Jurisdiction.9 Arrangement of an administrative jurisdiction in tax matters should not - due to the expected relief of the Administrative Court, despite intended expansion of the system of protection of rights in the sense of a process acceleration and reinforced civil service - lead to higher costs.10
Adjustment of including specialized11 institutions in tax dispute resolution process could be evaluated positively due to several aspects, i.e. reduction of the workload of the courts; it is free of charge (stamp duty may be saved); cases are heard and resolved by the specialists of the field etc. Mentioned institutions are still very often questioned due to their necessity and independence. Establishment of the Financial Court will probably terminate the topic in Austria, meanwhile the following years could show whether Lithuania should also consider following this step.
SOME ASPECTS OF THE COMPARATIVE ANALYSIS
First noticeable difference related to this topic is the definition of tax dispute. Where the legal scientists in Lithuania provides several different interpretations of what shall be the proper concept of the tax dispute, in Austrian law the concept “tax dispute” is virtually not used or very rare. In Austria such definition lays under the expressions “protection of the rights” or similar. One can find recommendations in Lithuanian scientific works to establish a unified, clear and consistent concept of the tax dispute, as when it is applied and interpreted by several different institutions, it often creates problems both in respect of the taxpayer and the tax authority.12 The principle of legal certainty could be mentioned here which in the sense of the tax law would mean that tax legislative rules should be defined so, that it would minimize the potential amount of different interpretations and choices.13
Most of European states agree, that a one-time tax administrator’s review of the ruling is abso
-lutely necessary, namely it is important to provide tax authority with an opportunity to annul the decisions, if they are unreasonable and / or illegal, in order to avoid unnecessary tax disputes.14 This provision, implemented both in Austrian and Lithuanian legislation, provides that tax dispute resolution at central tax authority is compulsory. The main difference here is the position of tax authority in a tax dispute. Proceeding at Austrian tax authority is more seen as review of own de -cisions15, meanwhile at Lithuanian tax authority it is seen as resolution of tax dispute. Moreover,
9 ‚Ausschuss macht Weg frei für neues Finanzgericht‘, Online under http://derstandard.at/1353206867076/Ausschuss-macht-Weg-frei-fuer-neues-Finanzgericht
10 Langheinrich, ‘Der langersersehnte Abschluss der Integration im abgabenbehördlichen Rechtsmittelverfahren” (Fi-nanz Journal, Grenz Verlag 7-8/2012) p. 234
11 As mentioned before, in Lithuanian legal literature such institutions are called pre-trial, but further analysis of the definition of the Court will show, that at some point of view they are considered to be Courts.
12 Strazdiene, ‘Kai kurie probleminiai mokestinio ginco savokos aspektai’ (Teisė. 2004. Nr. 51, 2004) p. 2 13 Lehis, ‘Means ensuring protection of taxpayers‘ rights in Estonian tax law’ (Juridica International IV/1999) 14 Medeliene, ‘Mokestiniu gincu nagrinejimo teorines ir praktines problemos’(Vilnius, Daktaro disertacija, 2005) p. 245 15 Austrian tax office is allowed to issue (Since 2014 it will be compulsory) a preliminary decision on an appeal (Beru-fungsvorentscheidung).
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Austrian tax office may correct its own decision and issue a preliminary decision of appeal: tax office may react on the new factual and legal submissions and to amend, complement, correct or confirm its ruling in parts of judgement and motivation.16
Independency of the compared institutions, which is one of the essential features to assure the proper legal protection, may be verified by following aspects: the factual (institutional) independence and personal independence. The factual independence shall mean that the institution is not bound by instructions by any other higher authority and must not follow any other directions, except the law of the state. For instance in Austria, the members of the Independent Fiscal Senate, same as judges, are only bound to the law. Directives, decrees or individual settlements of the Federal Ministry of Finance etc. are binding neither to Senate nor to members of it.17 Similarly the Commission acts in accordance with the Constitution of the Republic of Lithuania, the Law on Tax Administration of the Republic of Lithuania, the Commission’s regulations, as well as other legislation.18
Factual independency is also assured by limitations of additional activities of the members of such institutions, implemented both in Austrian and Lithuanian law. When talking about institutio
-nal independence of the Commission of Tax Disputes, opinion differs. The perso-nal independence is assured by strict requirements and rules for the members of the analyzed authorities. Rules of appointment to members in both compared countries are public and regulated by law. Members of the Commission on Tax Dispute shall be appointed for a term of six years by the Government
of Lithuania19, meanwhile the full time members of the Independent Fiscal Senate are appointed by the Federal President for an unlimited period.20 Members of the Commission in Lithuania shall be appointed by the Government, acting on a joint recommendation from the Minister of Finance and the Minister of Justice21, which may cause some discussions over the factual independence. In both countries members shall comply with strict and clear personal and professional requirements. In Austria personal independency is guaranteed by law and in comparison to independency of judges, only the constitutional coverage is missing.22 Lithuanian Law does not provide particular provisions due to the independency of members of the Commission. A member of Commission on Tax Disputes may only be dismissed from his position under the grounds stated within the Law.23 In Austria the change of duty station is only possible with written acceptance. Full time members are in principle irremovable and not displaceable.24
Developing practice of tax disputes has an undeniably significant impact on both the concept and the process of tax disputes. Decisions of the Independent Fiscal Senate have been made free of
16 Beiser, ‘Steuern’, (Wien: WUV Verlag. 8. Auflage, 2010) p. 395 17 Beiser, ‘Steuern’, (Wien: WUV Verlag. 8. Auflage, 2010) p. 399
18 Official website of the Commission on Tax Disputes, Online under http://www.mgk.lt/ 19 Art 148 Part 4 of the Law on Tax Administration of the Republic of Lithuania 20 Art 3 Part 4 UFSG
21 Art 148 Part 4 of the Law on Tax Administration of the Republic of Lithuania 22 Beiser, ‘Steuern’, (Wien: WUV Verlag. 8. Auflage, 2010) p. 401
23 Art 148 Part 5 of the Law on Tax Administration of the Republic of Lithuania 24 Beiser, ‘Steuern’, (Wien: WUV Verlag. 8. Auflage, 2010) p. 401
charge publicly accessible on the internet. They are published in financial documentation (Findok), which is available to every Austrian citizen. Commission on Tax Disputes also provides anonymised decisions for announcement in the database INFOLEX.Praktika25 (server www.teismupraktika.lt). Promotion of decisions shall help taxpayers and other interested parties to access the litigation practice of the Commission, as well allowing the taxpayer to exercise their rights more effectively, to analyze and evaluate the activities of the Commission.26
One of the common features of the proceedings in the countries of research is the right of the tax authority to challenge the decisions of the specialized institution (the Commission and the UFS). In Lithuania, in accordance with Art 159 Part 2 of the Law on Tax Administration, the right of the central tax authority is limited by permission to contest the decision of the Commission only in the cases, where the central tax administrator and the Commission have provided different in
-terpretations of laws or other legal acts when resolving the tax dispute, but such an appeal is not possible over the different evaluation of the evidence and factual circumstances. The decision to make such an appeal shall also be made in respect with criteria of economic expediency, approved by the Minister of Finance. The tax authority in Austria is not bound to any similar limits related to content of an appeal, but shall take into consideration the internal organizational guidelines and get an approval from federal department. The complaint of the authority in such case is about the objective illegality of the decision, made by administrative authority.
DEFINITION OF A COURT
The word „court“ was mentioned many times in the recent paragraphs and it was mentioned that neither the Commission on Tax Disputes nor the Independent Fiscal Senate are courts and therefore called specialized pre-trial or quasi-judicial institutions. Unfortunately this statement is not entirely correct, because it cannot be said unambiguously. There are three main aspects by considering whether these institutions may be called courts or not:
• Definition of the Court in respect of Art 6 ECHR • Definition of the Court in respect of Art 267 TFEU
• Definition of the Court in accordance with Austrian and Lithuanian Constitutions.
Effective judicial protection is a fundamental right of the individuals.27 The right to have access to a court is a fundamental right enshrined in Art 6 of the ECHR and the ECJ held that this requirement of judicial control is also to be considered as general principle of Community law.28 It is considered as obvious that the concept of human rights and their protection had a significant
25 An aspect to be criticized here is that the mentioned Lithuanian database requires registration and is not free of charge, which to certain point limits the access of taxpayers and therefore may result with disturbance of implementation of their rights.
26 ‚Mokestinių ginčų komisija praėjusiais metais išnagrinėjo 318 mokesčių mokėtojų skundų‘ Online under http://www. buhalteris.lt/lt/?cid=805&new_id=217083
27 Pistone, ‘Legal Remedies in European Tax Law’ (Amsterdam, IBFD, 2009) p. 407 28 Mariolina, ‘Europeanisation of Administrative Justice?’ (Europa Law Publishing, 2009) p. 29
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influence on the idea of taxpayers’ rights.29 Target of the Art 6 of ECHR is the one guaranteeing minimum standards of procedural rights.30
There are different opinions whether this article is applicable to tax matters. According to the case law of the European Court of Human Rights, tax proceedings generally do not fall under the “civil heading” or “criminal heading” of the European Convention of Human Rights.31
The right to fair trial, arising from Art 6 Part 1 ECHR, is also implemented in the Art 47 (“Right to an effective remedy and to a fair trial”) of the EU Charter of Fundamental Rights. As it results from explanation report to Art 47 Part 2 of the CFR, this provision corresponds to Art 6 Part 1 of ECHR.32 Moreover, it is said, that «In Union law, the right to a fair hearing is not confined to disputes relating to civil law rights and obligations.»33 So to speak, Art 47 CFR also contain appropriate legal safeguards, but without the limitations exhibited if the scope of Art 6 ECHR.34
All that is stated above could confirm presumption that «it may be, that Art 47 Part 2 of CFR gives the extent over the scope of protection of the Art 6 Part 1 of ECHR reaching out procedural guarantees <...>.»35 The critics on non-application of Art 6 Part 1 of ECHR is not a new issue and is spite of the arguments supplied by the ECtHR, it is believed that its principles, in particular those enshrined in Art 6, should be applicable to proceedings concerning tax assessments.36
The voluntary harmonization with the principles of Art 6 ECHR anyway resulted through the installation of UFS, without this being legally binding.37 Installation of the Federal Finance Court will even strengthen the situation. In Lithuania, compared to the amount of Austrian scientific works, this topic is virtually unexamined. Commission›s compliance with Article 6 ECHR could be problematic for example due to the fact that the Commission is not established by law, qu
-estionable independence from the executive authority and due to the closed meetings of the Commission.
A significant role for evaluation of independency, organization and significance of specialized pre-trial institution plays Art 267 TFEU, which basically implements a right to make a request for a preliminary ruling from the European Court of Justice. In order to be able to make such a request an authority shall be considered as a court or a tribunal. In accordance with judicature of the European Court of Justice, a court is an organ of justice, which is having particular qualities.
29 Brezinski, ‘Taxpayer’s rights: Some Theoretical Issues’ (In the Book: edited by Nykiel, ‘PROTECTION OF TAX-PAYER’S RIGHTS EUROPEAN INTERNATIONAL AND DOMESTIC’, Wolters Kluwer, 2009)
30 Lagler, ‘Die Grundsätze des „fair hearing“ des Art 6 EMRK und das österreichische Verwaltungsverfahren‘ (Disserta-tion, 1996) p. 12
31 Pistone, ‘Legal Remedies in European Tax Law’ (Amsterdam, IBFD, 2009) p. 495
32 Urtz Christoph, ‚Das neue Zwangsstrafenverfahren nach § 283 UGB – Übersicht über die Neuerungen sowie unions- und verfassungsrechtliche Probleme‘ (ZFR 2011/127), p. 228
33 Online under http://www.eucharter.org/home.php?page_id=56
34 Ehlers, ‘Europäische Grundrechte und Grundfreiheiten‘ (Berlin: De Gruyter, 3. Auflage, 2009) p. 191
35 Urtz Christoph, ‚Das neue Zwangsstrafenverfahren nach § 283 UGB – Übersicht über die Neuerungen sowie unions- und verfassungsrechtliche Probleme‘(ZFR 2011/127), p. 228
36 Pistone, ‘Legal Remedies in European Tax Law’ (Amsterdam, IBFD, 2009) p. 497 37 Laudacher, ‚Die feste Geschäftverteilung im UFS‘ (SWK Heft-Nr 14/2004 529)
The Independent Fiscal Senate has been established, with a condition to fulfill the necessary requirements, also the ones of the Art 267 TFEU. Most important of them are: institution esta
-blished on legal basis and permanent facility; the guarantee of the independence and freedom from instructions of the members; compulsory jurisdiction and an adversarial process of a judicial nature.38 The European Court of Justice with verdict of 24.06.2004 did recognize the quality of the Independent Fiscal Senate as a court authorized for submission in sense of Art 234 EC (presently Art 267 TFEU).39 The Commission on Tax Disputes under the Government of Lithuanian Republic has been also recognized as a court in the sense of Art 267 TFEU in 2010.40 Since the requirements are relatively similar to the ones in Art 6 ECHR it may probably be concluded that Commission is on the proper way to reach the qualities of tribunal.
The UFS is the Court in the sense of ECHR and Art 234 EC (presently Art 267 TFEU), however not a court within the meaning of the Austrian constitution.41 That the Commission on Tax disputes in Lithuania is not considered to be a court clearly says the Art 147 of the Law on Tax Administra
-tion: “Tax disputes shall be considered by the central tax administrator, the Commission on Tax Disputes (hereinafter referred to as pre-trial tax dispute settlement institutions) and the court.” To conclude, neither in accordance with Lithuanian nor Austrian Constitution or other local Laws are the mentioned pre-trial tax dispute resolving institutions considered as a court.
CONCLUSIONS
Up to 2014 existing tax dispute settlement procedure in specialized institutions of Austria and Lithuania does indeed have similarities. Admittedly, Austria paid a lot of attention to organize the procedure of tax dispute resolution to make it compatible with international law, particularly in guaranteeing the protection of taxpayers’ rights. This does not mean that the Commission in Lithuania conflict with these principles – it is proved through the comparison that it actually is compatible - but the information and the amount of scientific researches on this topic is much lower. It could be wise to take an example from Austria in order to strengthen the position of the Commission on Tax Disputes, to expand their powers and scope. It would be also very “healthy” for Lithuanian system if legal academics could provide more scientific researches in this field. It could provoke constant review, necessary renewal of the system, compatibility with international acts and solution of existing problems.
The organization and legalistic implementation of a genuine two-stage administrative justice in terms of increasing the level of legal protection, in order to achieve acceleration effects and to achie
-ve administrati-ve simplification are considered to be as major challenges o-ver the establishment of administrative courts in Austria, the biggest reform in the history of jurisdiction since decades.42
38 Laudacher, ‚Die feste Geschäftverteilung im UFS‘,(SWK Heft-Nr 14/2004, 529) 39 Beiser, ‘Steuern’, (Wien: WUV Verlag. 8. Auflage, 2010) p. 405
40 Nidera Handelscompagnie Case No. C-385/09 ECJ [2010]
41 Hörtnagl-Seidner, ‚Formalentscheidungen im Abgabenverfahren: Der unabhängige Finanzsenat und die deutsche Finanzgerichtsbarkeit im Vergleich‘ (Linde Verlag, 1. Auflage, 2009)
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The aims of the reform are comprehensible, but it is still questionable whether they could have not been reached in the borders of UFS, since it has proved to be independent, efficient, reliable, well organized and professional body, recognized not only in national, but also in international level.
Analyses of the court concept on the one hand showed that compared institutions without being court on national level, satisfy international principles and standards applied to courts and thus are an effective tool for protection of taxpayers’ rights. On the other hand the precise analysis of these principles and standards shows the weaker points which could be improved.
Although neither unified opinion, nor template for tax dispute resolution exist, both comparative analysis in the form of the scientific works and the inter-institutional or international exchange of best practice and experience does undoubtedly contribute positively in order to the develop guidelines for effective tax dispute resolution.
Bibliography Books
Beiser, `Steuern`, (Wien: WUV Verlag. 8. Auflage, 2010)
Ehlers, ‘Europäische Grundrechte und Grundfreiheiten‘ (Berlin: De Gruyter, 3. Auflage, 2009)
Hörtnagl-Seidner, `‚Formalentscheidungen im Abgabenverfahren: Der unabhängige Finanzsenat und die deutsche Finanzgerichtsbarkeit im Vergleich‘ (Linde Verlag, 1. Auflage, 2009)
Lagler, `Die Grundsätze des “fair hearing” des Art 6 EMRK und das österreichische Verwaltungsverfahren‘ (Dis
-sertation, 1996)
Marcijonas, Sudavicius. `Mokesciu teise`(Vilnius: Teisinės informacijos centras, 2003)
Medeliene, ‘Mokestiniu gincu nagrinejimo teorines ir praktines problemos’ (Vilnius: Daktaro disertacija, Vilnius 2005)
Pistone, ‘Legal Remedies in European Tax Law’ (Amsterdam, IBFD, 2009) Articles
Brezinski, ‘Taxpayer’s rights: Some Theoretical Issues’ (In the Book: edited by Nykiel, ‘PROTECTION OF TAXPAYER’S RIGHTS EUROPEAN INTERNATIONAL AND DOMESTIC’, Wolters Kluwer, 2009)
Koran, ‘Schaffung von Verwaltungsgerichte in Österreich‘ (SWK 34/2012, 1445)
Langheinrich, ‘Der langersersehnte Abschluss der Integration im abgabenbehördlichen Rechtsmittelverfahren’ (Finanz Journal, Grenz Verlag 7-8/2012, 51. Jahrgang)
Laudacher, ‘Die feste Geschäftsverteilung im UFS‘(SWK Heft-Nr 14/2004 529)
Lehis, ‘Means ensuring protection of taxpayers‘ rights in Estonian tax law’ (Juridica International IV/1999) Online
under http://www.juridicainternational.eu/public/pdf/ji_1999_1_100.pdf
Mariolina, ‘Europeanisation of Administrative Justice?’ (Europa Law Publishing, 2009)
Strazdiene, ‘Kai kurie probleminiai mokestinio ginco savokos aspektai’ (Teisė. 2004. Nr. 51, 2004)
Urtz, ‘Das neue Zwangsstrafenverfahren nach § 283 UGB – Übersicht über die Neuerungen sowie unions- und verfassungsrechtliche Probleme‘ (ZFR 2011/127)
Legislation
Bundesgesetz über den unabhängigen Finanzsenat (UFS-Gesetz), Online under http://www.ris.bka.gv.at/Doku
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Tax Appeal Reform Act, No. 97/2002, Online under http://www.ris.bka.gv.at/Dokumente/BgblP
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Other Sources
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‘Finanzverwaltungsgerichtsbarkeitsgesetz 2012 – beschlossene Neuerungen‘, Online under https://www.help. gv.at/Portal.Node/hlpd/public/module?gentics.am=Content&p.contentid=10007.71398
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