scholarly journals The Contemporary Significance of the Principle of Proportionality in Tax Law

2021 ◽  
Vol 26 (4) ◽  
pp. 37-51
Author(s):  
Artur Mudrecki
Keyword(s):  
General Principle ◽  
Case Law ◽  
Daily Basis ◽  
Tax Law ◽  
Constitutional Interpretation ◽  
Law System ◽  
Constitutional Tribunal ◽  
Administrative Courts ◽  
Principle Of Proportionality ◽  
Limited Scope

Abstract The principle of proportionality plays a key role in shaping the principles of the tax law system, as it is an important element in the protection of taxpayer’s rights. The interpretation directive related to the principle of proportionality has a doctrinal, normative, and jurisprudential character. It is an EU and constitutional standard and should become a rule used on a daily basis in the practice of tax authorities. As a general principle of tax law, it is addressed to the legislative, executive, and judicial authorities. The article analyses the case law of the CJEU, the Constitutional Tribunal and the Supreme Administrative Court, which leads to the following conclusions. The CJEU quite often refers to the principle of proportionality in its jurisprudence and has developed a jurisprudence doctrine based on the doctrine of law. The Constitutional Tribunal, although in a limited scope, also employs the principle of proportionality. In disputes between tax authorities and taxpayers, Polish administrative courts apply the principle of proportionality using a pro-EU and pro-constitutional interpretation.

scholarly journals Impact of the Principle of Proportionality in Tax Law on the Jurisprudence of the Court of Justice of the European Union and the Supreme Administrative Court in Poland

2018 ◽  
Vol 3 (1) ◽  
pp. 46-56
Author(s):  
Artur Mudrecki
Keyword(s):  
European Union ◽  
Case Law ◽  
Tax Law ◽  
The European Union ◽  
Public Authorities ◽  
Court Of Justice ◽  
Constitutional Tribunal ◽  
Principle Of Proportionality ◽  
The Impact ◽  
Proportionality Principle

The principle of proportionality in tax law as an EU and constitutional standard may play an important role in the interpretation of tax law. The principle of proportionality is associated with moderation of the activities of public authorities and minimization of their interference in the sphere of rights and freedoms. The principle of proportionality is also called the principle of commensurability, moderation, and adequacy. The article analyses the impact of the proportionality principle in tax law on the case law of the Court of Justice of the European Union. The case law of the Polish Supreme Administrative Court uses the principle of proportionality when interpreting tax law, and the judgments of the Court of Justice of the European Union and the Polish Constitutional Tribunal have a significant impact on the jurisprudence of administrative courts in Poland.

scholarly journals Tax Ruling Regulations in Poland – Evolution of the Institution and Evaluation of the Regulations

2018 ◽  
Vol 3 (1) ◽  
pp. 5-15
Author(s):  
Elżbieta Agnieszka Ambrożej
Keyword(s):  
Statistical Analysis ◽  
Research Method ◽  
Case Law ◽  
Tax Law ◽  
Legal Regulations ◽  
Legal Research ◽  
Constitutional Tribunal ◽  
Administrative Courts ◽  
Legal Security

This contribution deals with tax ruling in Poland, its evolution, evaluation of legal solutions concerning it, as well as the practice of issuing those rulings by competent tax authorities. The main objective of the contribution is to confirm the hypothesis that legal regulations concerning tax ruling provisions and the practice of issuing them did not sufficiently ensure the main purpose of the ruling, i.e. uniformity of application of tax law by the fiscal apparatus, as well as legal security of taxpayers. The research used a dogmatic and legal research method, which was supplemented by an analysis of the case law of administrative courts and the Constitutional Tribunal, as well as the existing statistical analysis.

scholarly journals Zawieszenie rekrutacji w szkolnictwie wyższym

2020 ◽  
Vol 6(161) ◽  
pp. 99-116
Author(s):  
Łukasz Kierznowski
Keyword(s):  
Higher Education ◽  
Scientific Literature ◽  
Case Law ◽  
Administrative Law ◽  
Constitutional Principle ◽  
University Recruitment ◽  
Constitutional Tribunal ◽  
Legal Position ◽  
Administrative Courts ◽  
The Individual

The aim of the study is to compare the admissibility of suspending (and in fact — annulling, abandoning) already announced and commenced recruitment in higher education, as recently approved in the case law of administrative courts, with the requirements of the constitutional principle of protecting trust in the state and law and the second degree principles derived from it, as well as to demonstrate the effects on the legal position of the individual of the consolidation of such a position and its dissemination in university recruitment resolutions in connection with new statutory regulations in the area of law on higher education and science. The study makes use of the scientific literature on constitutional and administrative law, the jurisprudence of the Constitutional Tribunal and administrative courts, and, auxiliary, other sources.

Strict liability Regime in Poland

2020 ◽  
Vol 82 ◽  
pp. 294-308
Author(s):  
Emil Śliwiński
Keyword(s):  
Human Rights ◽  
Strict Liability ◽  
Case Law ◽  
European Convention ◽  
Administrative Procedure ◽  
Force Majeure ◽  
Constitutional Tribunal ◽  
Administrative Courts

The article focuses on administrative violations, which are considered to be based on strict (or objective) liability model. Due to the lack of in-depth scholarly analysis of administrative liability, its principles had to be developed in the case-law of the Constitutional Tribunal, which influences the decisions of administrative courts. The recently introduced provisions of the Code of Administrative Procedure concerning administrative monetary penalties are also analysed. The conformity of this model with the guarantees provided by the European Convention on Human Rights is examined, as well. The analysis leads to the conclusion that three exculpatory circumstances are recognized in this regime: force majeure, necessity and ensuring the standard of diligence established by the Constitutional Tribunal.

scholarly journals Primjena načela razmjernosti u praksi Suda Europske unije

2017 ◽  
Vol 38 (1) ◽  
pp. 673-685
Author(s):  
Inga Vezmar Barlek
Keyword(s):  
General Principle ◽  
Case Law ◽  
Legal Basis ◽  
Margin Of Appreciation ◽  
Principle Of Proportionality

The article emphasizes the principle of proportionality as a general principle of law. Analysis of some CJEU case law is introduced, regarding interpretative role of the principle of proportionality and its legal basis for annulment of individual and general acts. The distinction between the infringement of margin of appreciation and the principle of proportionality is given. The specificity of the Croatian administrative dispute law regarding the control of legality of the acts issued within margin of appreciation is emphasized. The principle of proportionality role as a legal basis for annulment of general acts in Croatian administrative dispute law is opened for discussion.

The Accrual Accounting Principle and its Implications for Portuguese Tax Courts Decisions

2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Daniel Taborda ◽  
João Sousa
Keyword(s):  
Tax Avoidance ◽  
Case Law ◽  
Tax Law ◽  
Income Transfer ◽  
Legal Decisions ◽  
Taxable Income ◽  
Principle Of Justice ◽  
Legal Arguments ◽  
Accounting Principle ◽  
Flexible Application

AbstractTo the best of our knowledge, this is the first paper focusing on the interpretations issued by different Portuguese courts concerning the application of the accrual principle established in the Corporate Income Tax Code.This paper uses a database of the Portuguese tax courts’ decisions and employs a case law-based research methodology to address the following question: under which circumstances the principle of justice may affect the strict application of the accrual principle? After collecting twenty-four legal decisions related to the application of the accrual principle outlined in tax law, this paper summarises eleven, grouping them according to the different issues under dispute. This analysis also includes the confrontation of the assumptions used by the tax authority and the claims of the taxpayers, identifying and discussing the legal arguments to override the strict application of the accrual principle.The main conclusion is that Portuguese courts may summon the principle of justice in taxation when taxpayers violate the accrual principle, in order to prevent unfair corrections to taxable income performed in tax audits. This paper found that the tax authority typically demands a rigid use of the accrual principle while the taxpayers often argue for a more flexible application. This last perspective has been adopted by the tax courts in certain circumstances, in particular when taxable income transfer was not motivated by tax avoidance.

scholarly journals On the issue of the modern system of tax law

2020 ◽  
Author(s):  
G.F. Cel'niker ◽  
N.A. Fityunina ◽  
S.A. Zvyaginceva
Keyword(s):  
Russian Federation ◽  
Derived Category ◽  
The Other ◽  
Tax Law ◽  
Law System ◽  
Separate Branch ◽  
Modern System ◽  
The Russian Federation ◽  
The One ◽  
Functional Purpose

The article reveals the features of the tax law system, which is considered, on the one hand, as an Autonomous, separate branch of law in the system of branches of law of the Russian Federation, and on the other, as a derived category from the norms that determine financial law and, thus, are a sub-branch by their functional purpose. The criteria on the basis of which it seems appropriate to allocate institutions in the tax law system are highlighted. The General and special parts of tax law are characterized through the prism of their Conditioned norms.

scholarly journals The Europeanisation of Spanish Administrative Law through the Principle of Legitimate Expectations

2020 ◽  
Vol 13 (2) ◽  
pp. 55-86
Author(s):  
Luis Arroyo Jiménez ◽  
Gabriel Doménech Pascual
Keyword(s):  
Decision Making ◽  
General Principle ◽  
Legal Status ◽  
Case Law ◽  
Administrative Law ◽  
Status Quo ◽  
Eu Law ◽  
National Legislation ◽  
Legitimate Expectations ◽  
The Eu

This article describes the Europeanisation of Spanish administrative law as a result of the influence of the EU law general principle of legitimate expectations. It examines, firstly, whether the formal incorporation of the principle of legitimate expectations into national legislation and case law has modified the substance of the latter, and if so, secondly, whether this has led to a weaker or a more robust protection of the legal status quo. To carry out that examination, the article considers the influence of the principle of legitimate expectations in two different areas: in individual administrative decision-making, and in legislative and administrative rulemaking. Our conclusion is that the Europeanisation of Spanish administrative law through the principle of legitimate expectations has been variable and ambiguous.

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