International
recovery of tax outstanding
Alena Pauličková
Anotácia: V rámci integračného procesu je daňová politika jednou z najdôležitejších oblastí. Vstupom do EU sa harmonizovalo aj slovenské právo s právom EU aj v oblasti medzinárodného vymáhania finančných pohľadávok. Celý proces bol uskutočnený zákonom č. 446/2002 Z. z. o vzájomnej pomoci pri vymáhaní niektorých finančných pohľadávok. Medzinárodné vymáhanie je postavené na zásade vzájomnosti a týka sa poskytovania informácií, doručovania písomností a vymáhania pohľadávok.
Kľúčové
slová: finančné
pohľadávky, vymáhanie pohľadávok,
exekúcia,
vzájomnosť, doručovanie písomností,
harmonizácia
Summary: Tax policy is one of the most important
spheres within the integration
process. Since an entry to the European Union, the Slovak law system has
been harmonised with the European Union law also in the sphere of international
recovery of financial outstanding. The whole process was realized by the Mutual
aid by some financial outstanding recovery Act No 446/2002 Coll. International
recovery is based on a principal of mutuality and it is related to information
providing, papers delivering and outstanding recovering.
Key words: financial
outstanding, outstanding recovery, execution, mutuality, papers delivering,
harmonisation
Since an entry to the European Union the Slovak law
system has been harmonised with the European Union law also in the sphere of
international recovery of financial outstanding. It was necessary to
approximate to our system of law the Council Directive 76/308/EEC about mutual
aid by recovery of outstanding concerning certain charges, dues, taxes and
other provisions according to later rules. The Directive regulates
international recovery within the European Union member states.
The whole process was executed by Mutual Aid by
recovery of some financial outstanding Act No 446/2002 Col. according to later
rules.
A subject of this Act is an adjustment, a procedure
and conditions under which a competent body of the Slovak Republic shall
render, require or accept aid by recovery of some financial outstanding
(further only “outstanding”):
a) On the basis of the international treaty, of
which the Slovak Republic is under contract;
b) On
the basis of the Treaty of Accession of the Slovak Republic to the European
Union in relation to EU member states.
The lawmaker also determined basic terms under this
Code:
a) Aid by
recovery of the outstanding shall be rendering, requiring or accepting
information needed to recover the outstanding or assure of the outstanding;
b) The
competent authority of a signatory state shall be the authority that is
according to law of the appropriate state or international treaty entitled to
require or render aid by recovery of the outstanding.
c) A
signatory state shall be the state that take part in aid by recovery of the
outstanding in compliance with S. 1 of the Act;
d) The
authority recovering the outstanding shall be the authority entitled to recover
outstanding in compliance with special laws;
e) The
competent authority of the Slovak Republic is the Ministry of Finance of the
Slovak Republic or the tax authority or the customs authority in charge of it.
Aid by recovery of the outstanding has to be related
to the tax. Aid by recovery of the outstanding relates to the outstanding which
originated in connection with:
a) income
tax;
b) estate
tax;
c) real
estate tax;
d) value
added tax;
e) consumption
alcohol tax, consumption vine tax, consumption beer tax, consumption cigarette
tax and consumption petroleum tax;
f)
customs and other payments collected by import and
export of commodity;
g) sanctions
and costs connected with outstanding recovery;
h) The
outstanding appointed in other signatory states that are the same or similar
with the outstanding mentioned above, or that are analogical with the taxes in
other signatory state including sanctions.
A force of the competent authority of the Slovak Republic and the
authority recovering the outstanding
The
competent authority of the Slovak Republic and the recovering authority by
rendering, requiring or accepting of mutual aid by recovering the outstanding
go in compliance with this Act. The recovering authority goes by recovery of
the outstanding in compliance with special law, if the law does not enact
differently.
The competent
authority of the Slovak Republic may charge the tax authority or the customs
authority to render, require and accept mutual aid by recovery of the
outstanding.
The tax authority in charge or the
customs authority in charge, shall render, require or accept aid according to this
Act or a special enactment (e.g. Tax and duties administration and about changes in the territorial
financial bodies system Act No 511/1992 Col.).
The
competent authority of the Slovak Republic shall be entitled under this Code,
to require the tax administrator that is a municipality, the information needed
to recover the outstanding concerning the tax which he administer. The
municipality is obliged to provide the information needed to recover the
outstanding in required extend.
A force of the Tax Head Office of the Slovak Republic
The
Tax Head Office as the authority in charge manages staff in charge of execution
departments of the tax authorities.
·
In a field of providing information:
-
It requires information needed to recover the
outstanding from the competent authority of the signatory state on a basis of a
requisition to provide information.
-
It is liable for data correctness listed in the
requisition and it provides information to the competent authority of the
signatory state needed to recover the outstanding on the basis of the
requisition to provide information.
-
It checks the accepted requisition.
-
It issues a confirmation about acceptation of the
requisition by 7 days from a date of the requisition acceptation.
-
It announces the competent authority of the signatory
state the provisions that it executed on the basis of its requisition, by 6
months from a date of acceptation of the requisition.
-
It announces the competent authority of the signatory
state a matter of fact and reasons of non-acquiring required information.
-
It continues in acquiring information on the basis of
a new requisition.
-
It will quit providing information needed to recover
the outstanding, if the competent authority of the signatory state serves a
written back bringing of the requisition about providing information.
Through the institute
of providing information it is possible to gain all the information about a tax
debtor including his place of residence, employment, income, property
relations, etc.
●In
a field of serving papers:
-
It requires the competent authority of the signatory
state to serve decisions issued by it and also other documents related to
recovery of the outstanding to the debtor or to a person who holds assets of
the debtor.
-
It serves papers to the debtor or to the person who
holds the assets of the debtor, or it he is a person obliged to perform duties
from the assets on the basis of the requisition about serving the document
which was submitted by the competent authority of the signatory state.
-
It checks the requisition about serving the document.
-
It issues the confirmation about acceptation of the
requisition by 7 days.
-
It announces to the competent authority of the
signatory state serving the papers to the debtor or to the person who holds
assets of the debtor or he is a person obliged to perform duties from the
assets (in a case if papers have not been served it is necessary to give
reasons).
Through the institute of serving documents it is possible to document a
proper evidence of the taxable unit´ s illegal act.
●In a field of recovery of the outstanding:
- It requires the competent authority of the
signatory state on the basis of the requisition about outstanding recovery.
- It is liable for data correctness listed in
the requisition about outstanding recovery, documents and other papers.
- It accepts the requisitions about outstanding
recovery from the competent authority of the statutory state.
- It safeguards outstanding recovery, if the
requisition contents terms provided by the Act No 446/2002 Col. according to
later rules, as well as the proclamation of the competent signatory state that
the papers have not been attacked by any judicial remedy in the signatory
state.
- It issues the confirmation about acceptation
of the requisition to recover the outstanding.
- It refuses the requisition to recover the
outstanding in a case that the recovery from the debtor or the person who holds
assets of the debtor or he is a person obliged to perform duties from the
assets could lead to the serious economic or social problems of the debtor or
the person, or the outstanding recovery of which is required is lower than 1500
EUR; It also refuses aid by the recovery, if mutuality is not ensured, or if
there is an expiration between the day of becoming the outstanding recoverable
and the day of submission of the requisition.
- It safeguards substitution or completion of
papers in order to recover according to valid legal regulation of the Slovak
Republic.
- It postpones recovery if the competent
authority of the signatory state, the debtor or the person who holds the debtor
´s assets or he is a person obliged to perform duties from the assets, it
serves the announcement that the recovering outstanding or papers are
disputable.
- It informs the competent authority of the
signatory state about the results of recovery by 6 months from acceptation of
the requisition to recover the outstanding.
- It permits postponements of the outstanding
payment or settlement in part payments with the agreement of the competent
authority of the signatory state to the debtor or the person who holds assets
of the debtor or he is a person obliged to perform duties from the assets.
- It informs the competent authority of the
signatory state by 1 year from the day of acceptation of the requisition about
reasons of unenforceable outstanding or of its part and about up to now acts
done to recover it.
- It informs the competent authority of the
signatory state about a change of sum of the recovery outstanding.
- It safeguards stopping the outstanding
recovery, if the competent authority of the signatory state delivers the
information that the reasons to recover passed away.
- It informs without any delay the competent
authority of the signatory state about acts due to remitting the recovered sum of
the outstanding.
- It safeguards a transfer of the recovered sum
of the outstanding to an account of the competent authority of the signatory
state by 1 month from a day of the recovery.
Through the institute of outstanding
recovery it is possible to safeguard recovery of the outstanding according to
the valid legal regulation of the state in which the tax debtor is situated.
The
subject of the international recovery are all the taxes listed in provision of
S.3 of Act No 446/2002 Col. according to later rules, an as it results from the
provision of law shown. The Tax Head Office of the Slovak Republic is the
competent authority also for international recovery of the real estate tax
where the administrator and also the recovering office is a municipality.
A
procedure by the outstanding recovery is analogous. The outstanding of other
signatory state according to the provision of S. 6a of Act No 446/2002 Col.
according to later rules, is recovered in a same way like the outstanding of
the Slovak Republic; it doe not have any priority before other outstanding and
it is recovered in the Slovak currency[1].
Procedure by the outstanding recovery
The
outstanding of other signatory state is recovered in a same way as the
outstanding of the Slovak Republic. The outstanding of the other signatory
state is recovered in the Slovak currency. For purpose of the outstanding
recovery papers issued according to the legal regulation of the signatory state
consider to be papers issued according to the system of law of the Slovak
Republic. If it is necessary, according to the system of law of the Slovak
Republic, to complete or substitute papers by other papers according to the
system of law of the Slovak Republic, it will be safeguarded by the competent
authority of the Slovak Republic by 3 months from a day of accepting the
requisition about recovery of the outstanding. This term can be extended by the
competent authority of the Slovak Republic. The competent authority is obliged
to inform the competent office of the signatory state about the reasons of
extending the term latest till 7 days from finish of the term. If the
announcement from the competent office, the debtor or the person mentioned in
the provision of S. 6 par. 3, letter f) of the Act from the signatory state was
served to the competent authority of the Slovak Republic about the fact that
the recovering outstanding or papers are disputative, the competent authority
of the Slovak Republic postpones recovery of the outstanding (S. 8) and informs
the competent authority of the signatory state about it not later than 1 month
from a day of acceptation of such the announcement.
S. 6 par. 3 letter f) of Act No 446/2002 Col.
“Name, surname, identification number and a date of birth of a natural
person or a commercial name of an artificial person who holds the debtor´
s assets or he is the person obliged to pay from the debtor´ s assets,
permanent residence, or domicile.”
The competent authority of the Slovak Republic may continue in the
outstanding recovery, if the requisition about continuing in the outstanding
recovery was served to it. Information and papers shall be delivered without
any delay by the competent authority of the Slovak Republic to the recovering
authority. The recovering authority is entitled in connection with recovery of
the outstanding to require additional information and papers through the
competent authority of the Slovak Republic. At the request of the competent
authority of the Slovak Republic the recovering authority is obliged to inform
the competent authority without any delay about acts done for a purpose to
recover the outstanding.
During
the time of the outstanding recovery the competent authority of the Slovak
Republic shall inform every 6 months from a day of accepting the requisition
about the outstanding recovery the competent authority of the signatory state
about the results of the outstanding recovery, and without any delay it shall
inform about the acts done on a basis of the requisition about the outstanding
recovery. The competent authority of the Slovak Republic may permit a
postponement of a payment of the recovering outstanding to the debtor or to the
person mentioned in the provision of S. 6 par. 3 letter f ) of the Act, or its
payment in part payments only with the agreement of the competent authority of
the signatory state. During the time of the postponement of a payment of the
recovering outstanding or its payment in the part payments the debtor a the
person mentioned in the provision of S. 6 par. 3 letter f) of the Act is
obliged to pay an interest what belongs to the signatory state that requisite
the outstanding recovery. In case of the postponement of the payment of the
revering outstanding or its payment in part payments it is necessary to proceed
according to the Act No 511/1992 Col.
The
tax and duty recovering authority permits the postponements of execution
performance according to the special provision with the agreement of the
competent authority of the signatory state. In a case of change the sum of the
recovering outstanding, that means its decreasing, the competent authority of
the Slovak Republic continues in its recovery on the basis of a written
information of the competent authority of the signatory state, and the new
papers issued by the competent authority of the signatory state in connection
with this change. If the sum of the outstanding has been recovered and the
recovered financial sources have not been paid on the competent
authority´ s bank account of the signatory state, the competent authority
of the Slovak Republic shall return back the difference between the recovering
sum and the decreased sum of the
outstanding to the debtor or to the person mentioned in the provision 6 par. 3
letter f) of the Act.
Stopping the recovery
The
competent authority of the Slovak Republic shall safeguard stopping the
recovery of the outstanding, if he has been delivered the written information
from the competent authority of the signatory state that the reasons of the
outstanding recovery passed away. The competent authority of the Slovak
Republic shall inform in the written form without any delay, the competent
authority of the signatory state about the acts refer to the recovering
outstanding done. By one month from the day of the outstanding recovery the
competent authority of the Slovak Republic shall make a payment (recovered sum
of the outstanding) to the competent authority of the signatory state in the
Slovak currency on a bank account indicated in the requisition.
Terms of recovery
The terms
of recovery are administered according to the legal order of the state which
requires the outstanding recovery. The acts with an influence on lapse terms
consider performed also in a case when they are done by the recovering office.
Refusing rendering assistance by recovering the outstanding
The competent
authority of the Slovak Republic refuses rendering assistance by recovering the
outstanding it there has not been safeguard a mutuality or if there has been a
longer time period than 5 years between the day when the outstanding became
recovering and the day of submitting the requisition. If there has been a legal
remedy or extraordinary legal remedy delivered, this term is not extended. The
competent authority informs the competent authority of the signatory state about
the reasons of refusing the requisite not later than 3 months from the day of
acknowledgement. If the competent authority of the Slovak Republic refuses the
requisition about the outstanding recovery of the competent office of the
signatory state (the EU member state), it shall inform about the refusing also
the European Commission.
Providing information by electronic sources
All the information according to the Act no
446/2002 Col. The competent authority of the Slovak Republic provides via
electronic sources signed by a guaranteed electronic signature, except for the
requisition:
a) about
serving papers together with papers which shall be served;
b) About the
outstanding recovery together with papers.
The roles in communication field via electronic
sources with other signatory state through the CCN/CSI network performs the
entitled tax authority except for roles in the fields of consumption taxes and
customs, that plays the entitled customs authority.[2]
As it influences from statistical findings, international
outstanding recovery in the Slovak Republic is not a very successful issue.
Less success is seen in tax outstanding recovery not only in the Slovak
Republic, but also in an international extend. The most successful way of
recovery is known through order the outstanding from a bank account in a bank.
The biggest problem in this field comes from the law enforcement in the Slovak
Republic. No one from the ways of tax execution performance according to the
Tax and duties administration and about changes in the territorial financial
bodies system Act No 511/1992 Col., has not been without problems. And the
international outstanding recovery is in a same situation.
Recovery within the EU countries
Since
the entry of the Slovak Republic to the European Union the tax offices of the
Slovak Republic have been entitled in compliance with the Council Directive
76/308/EEC about mutual aid by recovery of outstanding concerning certain
charges, dues, taxes and other provisions, and the Act No. 679/2004 Col. by
which the basic provisions of the Directive about the outstanding recovery to
the national legislation of the Slovak Republic have been implemented, to
request through the competent authority the competent authorities of the member
states of the European Union to recover outstanding internationally, to serve
papers and to provide information about the tax debtor. It means that in a case
of the outstanding recovery, it is not possible to ask a country that is not
the member state of the EU.
This
process of international outstanding recovery is a very difficult one (and
needs a lot of time). The employee of the tax administrator proceed according
to the 7th part of the Act No 511/1992 Col. The most serious problem
is finding out in which EU member state the Slovak taxable person does his
business or, as the taxable debtor, if he is the owner or the companion
(partner) of some trade company in other EU member state. The problem is that a
tax system of individual countries is has not been mutually connected. The procedure
of the tax administrator, then, has to result only from the tax payer tax
return. It is only up to the taxable subject (unit) to declare according to the
Income tax Act No 595/2003 Col. and to introduce his complete real income from
abroad. In the opposite case the tax administrator has not any chance to find
out whether the tax payer did have or did not have any income abroad.
De lege ferenda
It
would be useful to adjudicate a process of the tax execution according to the
Act No 233/1995 Col. (Executory regulations) to put on one level the tax
executive action with the action of the outstanding recovery by the legal
executor.
Then,
it is necessary to point out a reality from a practice concerning trade
companies. Most of the trade companies with some financial problems deplete
with an aim to file a proposal about the declaration of insolvency.
Subsequently the Court rejects it because of lack of the property and the
company is erased from the Companies Register ex offo. This way the tax debtors
avoid the tax payments and also the tax outstanding payments.
International outstanding recovery regularized
by the Council Directive 76/308/EEC about mutual aid by recovery of outstanding
concerning certain charges, dues, taxes and other provisions was accepted by
all the EU member states. It would be necessary to simplify the process of
international tax recovery of outstanding payments. We come out from a fact
that the outstanding from the other signatory state is recovered in a same way
as the outstanding of the Slovak Republic. Because of that it would be
necessary to simplify the tax execution proceedings within the Tax and duties
administration and about changes in the territorial financial bodies system Act
No 511/1992 Col. This fact will also have a positive influence on the
international outstanding recovery.
References
1. Zákon č. 511/1992 Zb. o správe daní a poplatkov a o zmenách v sústave územných finančných orgánov.
2. Zákon č. 446/2002 Z.z. o vzájomnej pomoci pri vymáhaní niektorých finančných pohľadávok.
3. Smernice Rady č. 76/308/EHS o vzájomnej pomoci pri vymáhaní pohľadávok týkajúcich sa určitých poplatkov, odvodov, daní.
4. Kováčiková, E. – Stískalová, A. – Szilágyi, M.: K niektorým problémom medzinárodného vymáhania daňových pohľadávok. Obchodné právo. Odborný časopis pre podnikateľov, právnikov a špecialistov. Roč. IX, č. 8-9/2008, s.143-152.
5. Pauličková, A.: Malý slovník daňového práva (Výkladový slovník). Eurounion, Bratislava 2006, 158 s. ISBN 80-88984-91-2.
6. Pauličková, A. - Bakeš, M. a kol.: Finančné právo na Slovensku a v Čechách. Vysoká škola v Sládkovičove. EUROUNION 2007. ISBN 978-80-88984-99-3.
Address:
Doc. JUDr. Alena Pauličková, PhD.
School in Sladkovicovo
Janko Jesensky Faculty of Law
Richterova Str.
925 21 Sladkovicovo
Tel./fax: +421 33 5446536
e-mail: apaul@palmsoft.sk