Application of the General Clause of Reasonableness and Criterion of Rationality in Polish Tax Law

This paper’s objective is to present two methods of introducing elements of the civil general clause of reasonableness into tax law. One of them is the lawmaking process, the other is the application of law, i.e. the decisions of tax authorities and the jurisprudence of national administrative courts.

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Certainty and Uncertainty in Tax Law: Do Opposites Attract?

Laws ◽

10.3390/laws9040030 ◽

2020 ◽

Vol 9 (4) ◽

pp. 30

Author(s):

Alexander V. Demin

Keyword(s):

Law Enforcement ◽

Everyday Life ◽

International Organizations ◽

Good Faith ◽

The Other ◽

Tax Law ◽

General Requirement ◽

Law Enforcement Agencies ◽

The One ◽

Effective Channel

The principle of certainty of taxation is the dimension of a general requirement of certainty in the legal system. The purpose of this article is to argue the thesis that uncertainty in tax law is not always an absolute evil, sometimes it acts as a means of the most optimal (and in some cases the only possible) settlement of relations in the field of taxes. On the contrary, uncertainty and fragmentation in tax law are colossal problems subject to overcome by the efforts of scientists, legislators, judges, and practicing lawyers. Uncertainty in tax law is manifested in two ways: on the one hand, negatively—as a defect (omission) of the legislator and, on the other hand, positively—as a set of specific legal means and technologies that are purposefully used in lawmaking and law enforcement. In this context, relatively determined legal tools are an effective channel for transition from uncertainty to certainty in the field of taxation. A tendency towards increased use of relatively determined legal tools in lawmaking processes (for example, principles, evaluative concepts, judicial doctrines, standards of good faith and reasonableness, discretion, open-ended lists, recommendations, framework laws, silence of the law, presumptive taxation, analogy, etc.), and involving various actors (courts, law enforcement agencies and officials, international organizations, citizens, organizations and their associations) allow making tax laws more dynamic flexible, and adequate to changing realities of everyday life.

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On the issue of the modern system of tax law

10.18411/lj-11-2020-246 ◽

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.

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Judicial Interpretation of the Tax Law Provisions and Protection of the Subjective Rights of Taxpayers – In the Light of Art. 153 of the Act on Proceedings Before Administrative Courts in Poland

Studies in Logic Grammar and Rhetoric ◽

10.2478/slgr-2013-0015 ◽

2013 ◽

Vol 33 (1) ◽

pp. 77-99

Author(s):

Anna Dumas ◽

Piotr Pietrasz

Keyword(s):

Crucial Role ◽

Tax Law ◽

Judicial Interpretation ◽

Administrative Authority ◽

Legal Assessment ◽

The Subject ◽

Administrative Courts ◽

Administrative Proceedings ◽

Subjective Rights

Abstract This article refers to the issues associated with the crucial significance of the interpretation of tax law provisions made by administrative courts in the course of the judicial inspection of tax decisions, within the context of protecting the subjective rights of taxpayers. The analysis in that regard has been prepared based on the provisions of art. 153 of the Act of 25 July 2002 on Proceedings before Administrative Courts, which expresses the important rule of binding the court and the administrative authority, whose act was the subject of an appeal, with a legal assessment and instructions regarding the further proceedings described in the decision of the administrative court. As a result of this rule, a decision of an administrative court exerts the results exceeding the scope of judicial administrative proceedings, while its effect also covers the future tax proceedings. If the legal assessment made by the court refers to the regulations that affect the subjective rights of a taxpayer, it means that the administrative court imposes the effects of “its” interpretation of those provisions on a tax authority. In turn, the tax authority is obliged to respect those rights in accordance with the opinions of the court, which usually affects the final resolution of a tax case. It should be borne in mind that a taxpayer, by submitting an appeal against a tax decision to an administrative court, demands not only an inspection of the acts of tax administration, but also - which should be emphasized - demands the execution of its rights, including its subjective rights. Therefore, we should not forget the crucial role of the administrative courts in the protection of the substantive rights of taxpayers. The instrument that allows the administrative courts to guard the subjective rights of taxpayers, consists in the procedural regulations included in the provisions on proceedings before administrative courts, and in particular art. 153 of the Act on Proceedings before Administrative Courts in Poland.

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El sistema de atribución de competencias a las entidades locales en la Ley de Instituciones Locales de Euskadi

RVAP 118 - Revista Vasca de Administración Pública / Herri-Arduralaritzarako Euskal Aldizkaria ◽

10.47623/ivap-rvap.107.2017.2.07 ◽

2017 ◽

pp. 213-267

Author(s):

Francisco TOSCANO GIL

Keyword(s):

State Regulation ◽

The Other ◽

Local Autonomy ◽

General Clause ◽

El Sistema ◽

Title Iii ◽

The One

LABURPENA: Euskadiko Toki Erakundeei buruzko apirilaren 7ko 2/2016 Legearen helburu nagusietako bat lurraldeko tokiko entitateei eskumenak emateko sistema bat diseinatzea da. Horri buruzkoa da Legearen III. Titulua, zeinak arreta berezia eskaintzen baitie udalerriei. Atal horretan, batetik, eskumen propioak, transferituak edo eskuordetuak bereizi dira; bestetik, aurrekoak ez beste eskumen batzuk sailkatu ditu, eskumenen klausula orokorren eskema propio bati erantzuten diotenak. Legeak zenbait helburu uztartzen ditu horrelako eskumen motak arautzerakoan. Lehenik eta behin, eskumen propioari sisteman zentraltasuna eta lehentasuna ematea, toki-autonomiarekin duen loturari erreparatuz, Europako Tokiko Autonomia Gutuneko printzipioen baieztapenarekin duen loturari, hain zuzen; horren ondorioz, EAEko udalerriek dute, une honetan, estatu espainiarreko berme estandar altuena. Bigarrenik, transferitutako edo eskuordetutako eskumenak arautzea, sisteman hondar posizioa emanez. Hirugarrenik, aurreko ez beste eskumen batzuk balia daitezen bermatzea, estatu mailako oinarrizko araudiko betekizunak betetzeari utzi gabe. RESUMEN: Uno de los objetivos principales de la Ley 2/2016, de 7 de abril, de Instituciones Locales de Euskadi es diseñar un sistema de atribución de competencias a las entidades locales de su territorio. A ello se dedica el Título III de la Ley, prestando una especial atención al municipio. En éste se distingue entre, por un lado, competencias propias, transferidas y delegadas, y, por otro, competencias distintas de las anteriores, que responden al esquema propio de una cláusula general de competencia. La Ley conjuga varios objetivos en la regulación de estos tipos competenciales. Primero, dotar a la competencia propia de centralidad y prevalencia en el sistema, en atención a su conexión con la autonomía local, configurando una estructura de garantías que, en su conexión con la afirmación de los principios de la Carta Europea de la Autonomía Local, hacen que el municipio vasco sea en estos momentos el municipio que cuenta con los estándares de garantía más elevados del Estado español. Segundo, regular las competencias transferidas y delegadas, atribuyéndoles una posición residual en el sistema. Tercero, garantizar el ejercicio de competencias distintas de las anteriores, sin dejar de cumplir con las exigencias de la normativa estatal básica. ABSTRACT: One of the main objectives of Act 2/2016 of April 7th on Local entities of Euskadi is to devise a system of allocation of powers for the local entities in that territory. Title III of the Act is devoted to it, paying special attention to the municipality. That title distinguishes on one hand between own, transferred and delegated competences and on the other, competences different to the aforementioned which respond to the own schema of the general clause of competence. The Act combines several objectives when regulating theses types of competences. Firstly, providing the own competence with the centrality and primacy within the system, due its connection with local autonomy, setting a structure of guarantees that in connection with the affirmation of the principles of the European Charter for Local Autonomy make nowadays the Basque municipality the one with highest guarantee standards in Spain. Secondly, it regulates the transferred and delegated competences by granting them a residual position within the system. Thirdly, it guarantees the exercise of competences different to the aforementioned while fulfilling the requirements established by the Basic State regulation.

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Legal certainty in taxation at authorities and courts of law: a nordic view of specialization and unbiasedness

Nordic Tax Journal ◽

10.1515/ntaxj-2016-0001 ◽

2016 ◽

Vol 2016 (1) ◽

pp. 17-28

Author(s):

Mats Tjernberg

Keyword(s):

Decision Making ◽

Nordic Countries ◽

The State ◽

Tax Law ◽

Court Decisions ◽

Self Awareness ◽

Legal Certainty ◽

Legal Situation ◽

Special Knowledge ◽

Administrative Courts

Abstract Legal certainty is central to taxation decisions. This article describes the current legal situation and discussions in four Nordic countries. Sweden and Finland are specialized in dealing with taxation cases in administrative courts. In Denmark and Norway, no specialization exists in taxation cases. I maintain in this article that legal certainty would benefit from explicit signals from the state about the requirement of special knowledge and unbiasedness in authority and court decisions. These signals could well take the form of specialization in the courts. The need for specialized expertise is particularly extensive in tax law. It is also crucial for the agencies’ officials and judges to be aware that a subjective sense of unbiasedness in decision making does not necessarily mean that the unbiasedness aimed for has been attained. Self-awareness of this kind would ensure that argumentation and grounds for decisions would be made credible and transparent, to the benefit of legal certainty.

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The Contemporary Significance of the Principle of Proportionality in Tax Law

Białostockie Studia Prawnicze ◽

10.15290/bsp.2021.26.04.03 ◽

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.

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KONTROVERSI PENGENAAN PAJAK PENGHASILAN ATAS TRANSAKSI VALUTA ASING

Media Riset Akuntansi Auditing & Informasi ◽

10.25105/mraai.v4i2.1863 ◽

2017 ◽

Vol 4 (2) ◽

pp. 207

Author(s):

Solihin Makmur Alam

Keyword(s):

Foreign Exchange ◽

Income Tax ◽

The Other ◽

Tax Law ◽

Font Size ◽

Other Hand ◽

Income Tax Law ◽

Economic Capacity

Article 4 section (1) Income Tax Law No. 17 / 2000 introduces what does the mean of Tax Objects. According to this article, Tax Objects shall be income, namely every kind of addition to economic capacity received or eamed by Taxpayers, derived both from Indonesia and outside Indonesia, which may be used for consumption or addition to property of the Taxpayers concerned, in whatever name or form.Income is the amount that a person can consume during a period of time and be as well-off at the end of the time as it was at the beginning. In other words, income is the amount that a person can be consumed without encroaching upon the capital.Moreover, income tax objects are very kind of addition to economic capacity, on the other hand, foreign exchane purchase transaction is an equity conversion in one form to another form which has the same value with it beginning equity. Thus, in this transaction , there is no addition to economic capacity received or earned by taxpayers. That's why, income tax deemed to foreign exchange purchase trasaction is not appropriate, because it will break the essence of source of law of income tax itself, that is income tax law No. 17/2000Keywords: Fiscal Stabilisation, tax object, Income, income tax deemed to foreign exchange purchase transaction.

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Bilans zysków i kosztów działań uszczelniających polski system podatkowy w latach 2015–2019

Studia BAS ◽

10.31268/studiabas.2020.32 ◽

2020 ◽

Vol 4 (64) ◽

pp. 95-119

Author(s):

Marcin Jamroży ◽

Aleksander Łożykowski

Keyword(s):

The Other ◽

Tax Law ◽

Tax Administration ◽

Tax System ◽

Compliance Costs ◽

Other Hand ◽

Legislative Changes

The paper provides an assessment of measures aimed at tightening up the Polish tax system in 2015–2019. In particular, the positive fiscal effect of limiting the VAT and the CIT gaps as a response to legislative changes is to be noted. On the other hand, the effects of the measures aimed at tightening up the Polish tax system include the adjustment or compliance costs for enterprises and tax administration. Sealing the Polish tax system is an inherently long-term process which, in addition to the original fiscal purpose, constitutes a challenge for the legislator to avoid excessive fragmentation of tax law.

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Protected Legal Interest of a Taxpayer as a Legal Category of Tax Law

Financial law ◽

10.18572/1813-1220-2020-11-23-26 ◽

2020 ◽

Vol 11 ◽

pp. 23-26

Author(s):

Elena A. Tsvetkova ◽

Keyword(s):

Public Interest ◽

The State ◽

The Other ◽

Tax Law ◽

Legitimate Interest ◽

Other Hand ◽

The One ◽

The Individual ◽

Subjective Rights

Protected legal interest is a legal category that allows to reflect all those interests that for one reason or another are not «covered» by subjective rights, but certainly have some importance for both society and the individual. It is convenient for the State, through such a tool as «protected legitimate interest», to take under its protection and protection those interests which, on the one hand, there is no need to translate into the rank of subjective rights, and on the other hand, when it is necessary for protection public interest, they gain a right and become the rights of the taxpayer.

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Precedensowy charakter uchwał Naczelnego Sądu Administracyjnego

Studenckie Prace Prawnicze, Administratywistyczne i Ekonomiczne ◽

10.19195/1733-5779.20.3 ◽

2017 ◽

Vol 20 ◽

pp. 35-49

Author(s):

Piotr Krzeszowiak

Keyword(s):

Case Law ◽

Application Of Law ◽

Legal Provisions ◽

The Law ◽

Administrative Courts ◽

Law Making

Precedensal Character Resolution of the Supreme Administrative CourtThe article presents the issue of the precedent character of some resolutions of the Supreme Administrative Court. At the same time he deals with the law-making and the precedent role of administrative courts. It deals with the issues of contemporary law change, including the transition from the syllogistic to the paradigmatic application of law. In addition, it describes Competence of the Supreme Administrative Court to adopt resolutions aimed at clarifying legal provisions, the application of which has caused divergences in the case law of administrative courts. At the end of the article is presented a review of the resolutions of the Supreme Administrative Court in the author’s assessment of the precedent character.

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