Se
reproducen a continuación los apartados de la Guía elaborada por el Tribunal
Europeo de Derechos Humanos referidos a asuntos tributarios decididos por dicho
Tribunal con base en el artículo 1 del Protocolo 1 del Convenio Europeo para la
protección de los Derechos Humanos y Libertades Fundamentales, ratificado por
España, y los enlaces a las Sentencias dictadas por el TEDH en los mismos
D. Taxation
283.
Taxation is in principle an interference with the right guaranteed by the first
paragraph of Article 1 of Protocol No. 1, since it deprives the person concerned
of a possession, namely the amount of money which must be paid (Burden
v. the United Kingdom [GC], § 59; Špaček,
s.r.o., v. the Czech Republic, § 39).
284. The
interference for taxation purposes is generally justified under the second
paragraph of this Article, which expressly provides for an exception as regards
the payment of taxes or other contributions (Gasus
Dosier- und Fördertechnik GmbH v. the Netherlands, § 59).
285. The
issue nonetheless comes under the Court’s purview, since the correct application
of Article 1 of Protocol No. 1 is subject to its supervision (Orion-Břeclav,
S.R.O. v. the Czech Republic (dec.)). A financial liability arising out
of the raising of taxes may adversely affect the guarantee of ownership if it
places an excessive burden on the person concerned or fundamentally interferes
with his financial position (Ferretti
v. Italy, Commission decision; Wasa Liv
Ömsesidigt, Försäkringsbolaget Valands Pensionsstiftelse and a group of
approximately 15,000 individuals v. Sweden, Commission Decision; Buffalo
S.r.l. in liquidation v. Italy, § 32).
286. The
State is generally allowed a wide margin of appreciation under the Convention
when it comes to general measures of economic or social strategy (Wallishauser
v. Austria (no. 2), § 65), as well as when framing and implementing
policy in the area of taxation (“Bulves”
AD v. Bulgaria, § 63; Gasus
Dosier- und Fördertechnik GmbH v. the Netherlands, § 60; Stere
and Others v. Romania, § 51).
The Court respects the legislature’s assessment in such matters unless it is
devoid of reasonable foundation (Gasus Dosier- und Fördertechnik GmbH v. the
Netherlands, § 60).
287. It is
first and foremost for the national authorities to decide on the type of tax or
contributions they wish to levy. Decisions in this area normally involve, in
addition, an assessment of political, economic and social problems which the
Convention leaves to the competence of the member States, as the domestic
authorities are clearly better placed than the Convention organs to assess such
problems (Musa v.
Austria, Commission decision; Baláž
v. Slovakia (dec.); Azienda
Agricola Silverfunghi S.a.s. and Others v. Italy, § 103; R.Sz.
v. Hungary, §§ 38 and 46). It is also for the domestic legislature to
make choices as to what may be classified as taxable income and what should be
the concrete means of enforcement of tax liability (Cacciato
v. Italy (dec.), § 25; Guiso
and Consiglio v. Italy (dec.), § 44).
288. Delay
in reimbursement of overpaid taxes amounted to a violation (Buffalo
S.r.l. in liquidation v. Italy, § 39 – the Court considering that
delays ranging from five to ten years had a serious impact on the applicant
company’s financial situation which could not be compensated by payment of
merely simple interest on the amounts due, caused uncertainty for the taxpayer
and was additionally compounded by lack of any legal avenues to remedy the
situation.
289.
Likewise, an inability to obtain the reimbursement of overpaid tax in respect
of which the domestic authorities acknowledged that it had been paid in
violation of the applicable substantive law gave rise to a violation: both the
negation of the applicant company’s claim against the State and the absence of
domestic procedures affording a sufficient remedy to ensure the protection of
the applicant company’s right to the peaceful enjoyment of its “possessions”
upset the fair balance (S.A.
Dangeville v. France, § 61).
290. A
discrepancy between the value of property taken for the purpose of calculating
compensation for expropriation and for inheritance tax led the Court to find a
violation on grounds of arbitrariness (Jokela
v. Finland, § 65).
291. The
mere fact that tax legislation is of a retroactive character does not, as such,
give rise to a violation (e.g. retroactive law to make certain transactions
subject to tax (M.A.
and 34 Others v. Finland (dec.)).
292.
Enforcement measures in the context of tax proceedings which were not
automatically suspended when a debtor appealed against them were considered
acceptable and falling within the State’s wide margin of appreciation, but they
must be accompanied by procedural safeguards to ensure that individuals are not
put in a position where their appeals are effectively circumscribed and they
are unable to protect their interests effectively. One of the important factors
here is whether there was some reasonable degree of communication between the
public authorities involved, allowing for protection of the taxpayers’ rights (Rousk
v. Sweden, § 124).
293. The
mere fact that the tax rate is very high does not per se give rise to a
breach; the Court examines the applicant’ tax rate (R.Sz.
v. Hungary, § 54). Taxation at a considerably higher tax rate than that
in force when the revenue in question was generated could arguably be regarded
as an unreasonable interference with expectations protected by Article 1 of
Protocol No. 1 (M.A. and 34 Others v. Finland (dec.)).
294.
However, in a case where a dismissed civil servant was obliged to pay tax on
her severance pay at an overall rate of 52%, the Court found a violation on the
following grounds: this rate had considerably exceeded the rate applied to all
other revenues; the applicant had suffered a substantial loss of income as a
result of her unemployment; and the tax had been directly deducted by the
employer from the severance pay without any individualised assessment of her
situation and had been imposed on income related to activities occurring prior
to the material tax year (N.K.M.
v. Hungary, §§ 66-74).
295. Also in
the context of tax proceedings, the Court attaches importance to the
availability of procedural safeguards in the relevant proceedings (compare Agosi
v. the United Kingdom, § 55). Fair balance was upset in cases where the
national authorities, in the absence of any indication of direct involvement by
an individual or entity in fraudulent abuse of a VAT chain of supply, or
knowledge thereof, nevertheless penalised the fully compliant recipient of a
VAT-taxable supply for the actions or inactions of a supplier over which it had
no control and in relation to which it had no means of monitoring or securing
compliance (“Bulves” AD v. Bulgaria, §§ 67-71).
El
artículo 1 del Protocolo 1 del Convenio Europeo de Derechos Humanos (CEDH) que
reconoce el derecho al disfrute pacífico de las posesiones de una persona
física o jurídica no podría, sin embargo, según la Sentencia del TribunalConstitucional 38/2011, de 28 de marzo, ser invocado en amparo y se encontraría
fuera del ámbito nacional de protección jurisdiccional
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