FORENSIC ECONOMIC EXAMINATION OF TRANSFER PRICING

The integration of national economies and markets, the ability of large corporations to conduct international business, the development of the digital sector of the economy contribute to global trends in the globalization of the international taxation system. The exchange of tax information and the conduct of joint tax audits by the tax authorities necessitate the unification of approaches to transfer pricing by transnational companies. The intensification of tax audits by tax authorities on transfer pricing issues leads to tax disputes, including those that are considered in court. Administrative litigation involves the use of an effective tool in resolving tax disputes on transfer pricing, namely forensic economic examination. The peculiarities of conducting tax audits on transfer pricing and the use of forensic economic examination as an effective mechanism in tax disputes on transfer pricing are studied. The analysis of judicial practice in this area allowed to establish groups of disputes on transfer pricing, which are considered by the Administrative Court of Cassation within the Supreme Court. It is established that the consideration of tax disputes on transfer pricing includes three mandatory elements: economic analysis, facts (circumstances) and the legal component (tax legislation). Forensic economic examination is an effective tool for resolving pre-trial or investigative conflicts of interest between the tax service and the taxpayer of the “economic analysis” component. Approaches to the formulation of questions submitted for the decision of forensic economic examination on transfer pricing are studied. It is determined that the conclusions of forensic experts form a qualitative and thorough evidence base of taxpayers in tax disputes in the field of transfer pricing.

Public law legal entity

After the entry into force of the Administrative Code of Republic of Moldova, the legal person under public law becomes a complex research topic. Taking into account the fact that, the Administrative Code of Republic of Moldova operates only with the notion of ,,public authority”, notions such as ,,public institution” and / or those legal entities of private law remain in the shadows which, in turn, by Law 714/200 on administrative litigation (repealed) were equivalent to public authorities, including in litigation cases. Of course, the above positions are not the only problematic moments in the judicial doctrine and practice, along the way the issue indicated in this article remains to be researched and argued continuously.

Administrative Procedure and Judicial Review in China

This chapter focuses on administrative procedure and judicial review in China. Despite its willingness to adapt to the rules of the global market, China does not accept the direct applicability of international standards in administrative litigation. Judicial review of administration is based on a set of legislative texts and judicial interpretations by the Supreme People's Court. Among these texts, the Administrative Litigation Law regulates the judicial review of administrative acts. There are two lists in its chapter concerning the scope of judicial review: one includes the administrative acts that are open to judicial review, another the acts that are not reviewable. In any case, it is up to the courts to examine the following two combinations of criteria: the degree of the seriousness of the infringement with the definition of the state interest and that of the public interest; and the degree of procedural breach with the definition of the real impact on the rights of the plaintiff. According to Article 76 of the ALL, in the case of annulment and/or declaration of unlawfulness of an administrative act, a court may order the administration to take measures to compensate the damage inflicted on the plaintiff.

Pârâtul în contenciosul administrativ: istoria romanțată a unei brambureli judiciare

"The Romanian administrative litigation is distinguished by the lack of unity of opinion on the passive procedural quality and, at the same time, by the existence of an ingrained custom – the possibility of suing the issuing body of the administrative act, as the sole defendant, – a custom currently lacking a particular legal basis. Starting from these premises, the study investigates at a conceptual level and from a diachronic perspective, the evolution of the defendant” in the administrative litigation, concluding that it is necessary to abandon the described custom. The passive procedural quality of the issuing body, even without legal personality, was justified by the doctrinal recognition of the theory of restricted legal capacity (or administrative law capacity) developed by Professor Ilie Iovănaș half a century ago. However, this theory was preceded by a succession of regulations, doctrinal opinions, and jurisprudential solutions, which, on careful analysis, contradicted it rather than substantiate it. Thus, since the interwar period, a distinction has been made between administrative bodies with legal personality and those without legal personality, the general conclusion being that legal personality is the only basis for passive procedural quality. In its absence, the administrative bodies (or, more precisely, the natural persons who held the leading position within them) could stand in court only as representatives of the legal person under public law – the state, the administrative-territorial units, the public establishments. But, even in the political-legal context created by Decree no. 31/1954 regarding natural and legal persons and by Law no. 1/1967 of the administrative contentious, the passive procedural quality was inextricably linked to the legal personality of a public law entity, because regardless of the claim made by the plaintiff, at least one of the defendants had to be a legal entity: insofar as the issuing body the defendant did not have legal personality, it could stand trial only in procedural co-participation with the legal person who ensured its existence (the one that which it depended from a patrimonial point of view). Moreover, in the event of the existence of an appeal for damages, procedural co-participation was necessary because, from a legal point of view, it is inconceivable that an entity without its own patrimony could be legally obliged to satisfy a patrimonial claim made by another legal subject. In conclusion, at the time of its creation, the theory of restricted legal capacity was developed by Proffessor Ilie Iovănaș to substantiate the sufficiency of the concept of administrative capacity (part of legal capacity, along with the civil one) to justify the passive procedural quality of the issuing body. However, with the political-legal changes of 1989, the foreground is suddenly occupied by the concept of unitary local authority a legal person under public law having its own patrimony, the administrative bodies being, at the same time, “depersonalized” (deprived of their legal personality) by their conceptual rethinking. However, in order to justify the passive procedural quality of the issuing body, the doctrine and the jurisprudence are continuing to use the theory of (restricted) administrative capacity, introducing the concept of administrative/public authority through successive laws on administrative litigation facilitating the preservation of this unfortunate custom. Currently, the legal basis that the Romanian doctrine uses to legally substantiate the theory of administrative capacity is related to the notion of public authority, as it is defined by art. 2 para. (1) letter b) of Law no. 554/2004 of the administrative contentious, and then used in the provisions of art. 1 and 13 of the same normative act. This theoretical construction is at least debatable: on the one hand, the notion is incoherent, a source of ambiguity in itself because it unjustifiably (and unfoundedly) assimilates an entity with full legal personality (private law) to one without legal personality (public law), ruining any attempt to bring order in this matter. On the other hand, the inadequacy of that concept results from the fact that it does not resolve all the situations in which, in practice, there would be a need to determine the issuing body of an administrative act. Consequently, taking into account the fact that any type of capacity, regardless of whether it is a material or procedural law, cannot exist, in theory, outside the legal personality, because each type of capacity is only a part of the juridical capacity (general), and the fact that any exception to this capacity must be expressly provided for by law (a procedural one, in the case of the capacity to stand as a defendant before the administrative court), it is undoubted that the only solution theoretically correct and practically risk-free for the plaintiff would be that, regardless of their concrete claim in court, the legal person of public law whose body issued the illegal act, the one that has the power to resolve the plaintiff’s claim must havepassive procedural capacity . This solution is also in line with the principle of security of legal relations (clarity and predictability of the law), especially since a legal person under public law can be recognized as issuing authority. This solution is based, on the one hand, on the provisions of the Romanian Civil Code (art. 218, 219, 221) which, acquiring applicability in the matter of administrative contentious pursuant to art. 28 of Law no. 554/2004 and assimilating from specific points of view the legal person of public law with that of private law, subjecting to the rules of the mandate the relations between the legal person and its bodies, and, on the other hand, those of the Romanian Administrative Code, given that the notion of administrative capacity acquired today, through art. 5 letter o) of the Romanian Administrative Code has an entirely different meaning."

Legge e giustizia amministrativa durante il ventennio fascista

The paper focuses on the relationship between the Fascist regime and the administrative justice. Once identified in the “invention” of exclusive jurisdiction (over individual matters) a “revolutionary” act of the early Fascism, the paper faces the problem of the administrative litigation over public debt. The issue is treated starting from the transformation of the jurisdiction of merit in the matter of public debt into exclusive jurisdiction: a special attention is paid to the two opposite theses of the “left-wing fascism” and the Italian Constitutional Court. Subsequently, the reflection shifts to the Fascist laws that have limited or excluded since 1923 the appeal against certain administrative acts, also referring to the reactions of the doctrine of the time. A particular case concerns the vice of excess of power which, in the Fascist period, was rationalized and also took on a different meaning from the original one foreseen by the law of 1889. After the fall of Fascism, a final look is turned to the two elusive techniques of the appeal to the administrative judge represented by the laws-measure and the so called “theft of jurisdiction”