LEGAL CERTAINTY AND TAXATION: THE PROBLEM OF RETROACTIVE INTERPRETATION

Dejan Popović, Svetislav V. Kostić

Sažetak


This article shows that the principle of legality of a tax norm is not exhausted in its “source” component (i.e. that the norm is enacted by parliament) but also encompasses the “content” element – a set of requirements for it to be deemed as good law. It is not just retroactivity of a law that is an issue, but legal certainty is also jeopardized by retroactive interpretation implying changes in interpretation of the same norm by authorities who understood it for a long period in a different sense. A threat to legal certainty also exists when a provision that was dormant for years is suddenly applied. A case study shows that the Serbian Parliament issued an authentic interpretation of a tax norm to assert essentially a different interpretation compared to the one well-established in the past, in order to solve a particular case, while a court used that interpretation to pass judgment in a pending case. Within the EU we find notable cases where not only are norms attributed a certain meaning from their inception, even though 60 years may have passed from their initial introduction to the possibility of the existence of a “new meaning” being suggested for the first time, but taxpayers are made to suffer the consequences of the new interpretation. Had the legislator been able to pay more attention to the content of the bills and apply a more comprehensive approach to current issues, the legal certainty, in terms of avoiding “innovative” retroactive interpretations, could be preserved.


Pojmovne odrednice


Good law; Retroactivity; Authentic interpretation; Urgent procedure; Retroactive interpretation

Reference


Ágh, A., “Parliaments as policy-making bodies in East Central Europe: The case of Hungary”, International Political Science Review 4/1997.

Antić, T., “Vjerodostojno tumačenje zakona” [Authentic Interpretation of the Law], Zbornik Pravnog fakulteta Sveučilišta u Rijeci 1/2015.

De Crouy-Chanel, E., Maitrot de la Motte, A., “France”, Separation of Powers in Tax Law (ed. A.P. Dourado), EATLP International Tax Series, IBFD, Amsterdam 2010.

Del Federico, L., Castigione, R., Miconi, F., “Italy”, Separation of Powers in Tax Law (ed. A.P. Dourado), EATLP International Tax Series, IBFD, Amsterdam 2010.

Dourado, A. P. “General Report – In Search of Validity in Tax Law: The Boundaries Between Creation and Application in a Rule-of-Law State”, Separation of Powers in Tax Law (ed. A.P. Dourado), EATLP International Tax Series, IBFD, Amsterdam 2010.

Fuller, L. L., Moralnost Prava [The Morality of Law], University of Belgrade Faculty of Law, Belgrade 2001.

Goetz, K. H., Zubek, R., “Government, Parliament and Law-Making in Poland”, The Journal of Legislative Studies 4/2007.

Gribnau, H., “Equality, Legal Certainty and Tax Legislation in the Netherlands. Fundamental Legal Principles as Checks on Legislative Power: A Case Study”, Utrecht Law Review 2/2013.

Gribnau, H., “Netherlands”, Separation of Powers in Tax Law (ed. A.P. Dourado), EATLP International Tax Series, IBFD, Amsterdam 2010.

Heinrich, J., Prinz, I., “Austria”, Separation of Powers in Tax Law (ed. A.P. Dourado), EATLP International Tax Series, IBFD, Amsterdam 2010.

Kopecký, P., “Power to the Executive! The Changing Executive–Legislative Relations in Eastern Europe”, The Journal of Legislative Studies 2–3/2004.

Lunder, E. K., Meltz, R., Thomas, K. R., “Constitutionality of Retroactive Tax Legislation”, 2012, Congressional Research Service, https://fas.org/sgp/crs/ misc/R42791.pdf, last visited 9 November 2017.

Mason, R., “Special Report on State Aid – Part 3: Apple”, Tax Notes, 6 February 2017.

McCormack, S. W., “Tax Abuse According to Whom?”, Florida Tax Review 1/2013.

Nielsen, J. G., “Denmark”, Separation of Powers in Tax Law (ed. A.P. Dourado), EATLP International Tax Series, IBFD, Amsterdam 2010.

Peters, B., van de Velde, E., “Belgium”, Separation of Powers in Tax Law (ed. A.P. Dourado), EATLP International Tax Series, IBFD, Amsterdam 2010.

Pettai, V., Madise, Ü., “The Baltic Parliaments: Legislative Performance from Independence to EU Accession”, The Journal of Legislative Studies 3–4/2006.

Priručnik za primenu Zakona o porezu na dobit preduzeća [Manual for the Application of the Corporate Income Tax Law], Ministry of Finance, Tax Administration, Belgrade 2007.

Tipke, K., Die Steuerrechtsordnung, Verlag Dr. Otto Schmidt, Köln 2000.

U. S. Department of the Treasury, White Paper. European Commission’s Recent State Aid Investigations of Transfer Pricing Rulings, Washington, D. C., 24 August 2016, https://www.treasury.gov/resource-center/tax-policy/treaties/Documents/White-Paper-State-Aid.pdf.

Vanistendael, F., “Legal Framework for Taxation”, Tax Design and Drafting, Vol. I (ed. V. Thuronyi), Washington, D.C.: IMF, 1996.

Verhagen, H. L. E., “State Aid and Tax Rulings – An Assessment of the Selectivity Criterion of Article 107(1) of the TFEU in Relation to Recent Commission Transfer Pricing Decisions”, European Taxation 7/2017.

Vuković, D., “Hollowing Out of Institutions: Law-making and Policymaking in Contemporary Serbia”, Paper presented at the 8th Central and Eastern European Forum for Young Legal, Political and Social Theorists: Central and Eastern European Socio-Political and Legal Transition Revisited – Theoretical Perspectives, Budapest 2016.


Povratni linkovi

  • Trenutno nema povratnih linkova