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Thursday, June 6, 2019

TEDH GUÍA SOBRE EL DERECHO DE PROPIEDAD: ASUNTOS TRIBUTARIOS


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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