U-I-152/04

On the basis of the challenged provisions of the Taxation Procedure Act (ZDavP) and of the amended Taxation Procedure Act (ZDavP-1), the period of the statute of limitations on the assessment of the sales tax on real estate does not start until the tax liability is declared or determined, which may lead to a situation where the aforementioned statute of limitations starts after the passage of a longer period of time or even does not start at all. The legislature namely bound the beginning of the period when the statute of limitations began to a subjective circumstance related to a person liable to tax or to a tax authority, respectively, i.e. to the declaration or determination of a tax obligation which is not defined as regards time, and not to an objective circumstance, as for example the end of the calendar year for which the tax obligation should be established. Thereby, the legislature regulated the statute of limitations on the assessment of the tax on real estate differently (more strictly) than regarding the statute of limitations on the assessment of other taxes. There exists no sound reason arising from the nature of the matter for such different regulation of the beginning of the period when the statute of limitations on the tax on real estate starts. It is indeed true that tax authorities cannot know of a legal transaction if they are not informed thereof. However, it must be taken into consideration that without declaring the legal transaction to the tax authority so that the sales tax on real-estate could be assessed, the buyer cannot have his ownership right registered in the land register, which entails that he cannot acquire the ownership right to the real-estate purchased (Article 49 of the Property Law Code, Official Gazette RS, No. 87/02), neither could he acquire such under the former regulation (Article 33 of the Basic Property Law Relations Act, Official Gazette SFRY, No. 6/80).

 

If it was of the opinion that there existed some other reason arising from the nature of the matter , the legislature could have determined the beginning of the period when the statute of limitations starts in the same manner as in cases of other taxes, only that it would determine a longer statute of limitations for such.