Up-52/96

Reference no.:
Up-52/96
Objavljeno:
OdlUS VII, 247 | 10.12.1998
ECLI:
ECLI:SI:USRS:1998:Up.52.96
Act:
Supreme Court judgement No. RU 30/95 dated 17 Nov. 1995, Supreme Court judgement and ruling No. Ur 46/94 dated 24 Feb. 1995, decision of the Agency of the Republic of Slovenia for Payment Operation, Supervision and Information, Ljubljana Head Office No. 710-Up/II-103/94-III-RM, DM, and the decision of the Public Auditor's Office of Slovenia, Ljubljana Subsidiary No. 93195 dated 21 Jun. 1994
Operative provisions:
The Supreme Court judgement, the ruling and Šanother] judgement of the Supreme Court, the decision of the Agency of the Republic of Slovenia for Payment Operation, Supervision and Information, the Ljubljana Head Office, and the decision of the Public Auditor's Office of the Republic of Slovenia, the Ljubljana Subsidiary, are abrogated ab initio in their dismissing part. The case is remanded to the competent tax body of the Ministry of Finance for a repeated consideration and decision.
Abstract:
The complainant and her one-person subsidiary company are independent legal subjects and (regarding goods traffic) independent taxpayers. The capital connection between the complainant and her subsidiary company did not affect complainant's tax obligations originating from the sale of tobacco products to the subsidiary company.

Every singular act of a State body adopted on the basis of an incorrect application of substantive law does not already mean an interference with complainant's human rights and fundamental freedoms. It is possible to speak of the violation of the complainant's human rights when the consequences of an incorrect application of substantive law are so severe so that through the implementation of the challenged singular act the complainant is facing unproportionate heavy consequences.

In Art. 5 of the Act on Temporary Measures concerning Sales and Service Occupation Tax (hereinafter: ZZUDPPS) the legislature did not include the write-off of goods. The analogy according to which the Supreme Court considered in the challenged part of the judgement that by the write-off of claims pursuant to Art. 57 of the Auditing Act, or by the removal of claims from accounts and the tax register, the complainant had transformed initially pecuniary legal transactions according to Art. 5, Para. 1 of ZZUDPPS into non-pecuniary transactions pursuant to Art. 5, Para. 1, It. 5 of ZZUDPPS, is mistaken. By the analogy the Supreme Court imposed on the complainant the duty to pay tax also from the payments she had never received, which was contrary to Art. 30, Para. 1 and 2 of ZZUDPPS. By such an incorrect application of substantive law the Supreme Court, contrary to Art. 33 of the Constitution, unproportionally interfered with the rights of the complainant, thus the Constitutional Court abrogated ab initio the judgement in the challenged part.
Password:
Sales Tax.
Interpretation of regulations, a restrictive interpretation of tax regulations.
Tax regulations, a restrictive interpretation.
Tax law, analogy in tax law.
Principle of paid realization.
Write-off and the removal of claims from accounts.
Violation of substantive law and human rights and fundamental freedoms.
Right to private property and inheritance.
Concurring opinion of a Constitutional Court justice.
Legal basis:
Constitution, Art. 33
Act on Temporary Measures concerning Sales and Service Occupation Tax (ZZUDPPS), arts. 5, 10,, 12, 26, 30, 42, 43 Companies Act (ZGD), Arts. 462, 475
Code of Obligations (ZOR), Arts. 31, 319
Auditing Act (ZR), Art. 50
Constitutional Court Act (ZUstS), Art. 59, Para. 1
Document in PDF:
Type of procedure:
constitutional complaint
Type of act:
other acts
Date of application:
01.09.1996
Date of decision:
10.12.1998
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio
Document:
AN01636