Appeal proceedings

 
 

A taxpayer dissatisfied with resolution of its case has the right to seek review by the competent appellate authority by the applicable deadline.

The legal basis for filing an administrative appeal or complaint is the Tax Ordinance of 29 August 1997.

The legal basis for filing a complaint with the administrative court or a cassation appeal is the Administrative Court Procedure Law of 30 August 2002.

Administrative appeal/complaint

A taxpayer has the right to appeal a decision and, in instances provided by law, a complaint against a decision issued by a first-instance authority.

The tax authority must inform the taxpayer of its right to appeal in the decision.

The taxpayer is entitled to review of a first-instance decision only through a single instance.

An appeal or complaint against a decision is generally filed with the appellate authority via the authority issuing the decision appealed by the taxpayer.

If the tax authority finds formal defects in the appeal submitted by the taxpayer, the taxpayer will be summoned to cure them by a set deadline. Lack of response by the taxpayer will result in rejection of the appeal.

First-instance tax authorities include:

  • Head of the local tax office
  • Head of the customs office
  • Mayor or executive of the local commune
  • County executive
  • Province marshal.

Higher-instance (appellate) authorities include:

  • Director of the tax chamber
  • Director of the customs chamber
  • Local government board of appeal.

In appealing a decision, the taxpayer must make specific allegations against the decision and seek specific relief, presenting the evidence justifying the demand.

At the stage of appeal proceedings, the taxpayer may request a hearing, where the taxpayer may file clarifications, submit demands, proposals and allegations, and provide evidence in support of its position.

The taxpayer may withdraw the appeal at any time prior to issuance of a decision by the appellate authority. However, the tax authority may refuse to allow withdrawal of the appeal if it finds it likely that a legally defective decision will remain in force.

The first-instance authority will forward a properly filed appeal, together with the case file, to the appellate authority, or the first-instance authority may issue a new decision vacating or amending its previous decision in the case.

When forwarding the appeal to the appellate authority, the first-instance tax authority must also respond to the allegations presented by the taxpayer and notify the taxpayer accordingly. This ensures that the taxpayer can actively participate in the proceedings.

A taxpayer is entitled to appeal a tax authority’s decision within 14 days after service of the decision.

The decision should instruct the taxpayer of its rights and the deadline for filing an appeal.

A complaint is a means of appeal against an order issued by a tax authority. An order, as opposed to a decision, does not resolve the merits of the case, except in instances specified in the Tax Ordinance.

The taxpayer should remember that an order subject to appeal or complaint to the administrative court must always be served on the taxpayer in writing.

A taxpayer seeking to overturn a final order may call on the tax authority through one of three extraordinary applications: to reopen the proceedings, to declare the invalidity of the order, or to vacate or amend the order.

Subject to instances indicated in the Tax Ordinance, a taxpayer is entitled to file a complaint against an order within 7 days of service.

The order should instruct the taxpayer of its rights and the deadline for filing an appeal.

Complaint to administrative court

A taxpayer dissatisfied with decisions or orders issued by a second-instance body (e.g. the director of the tax chamber) has the right to challenge them with a complaint to the province administrative court, filed via the authority that issued the ruling.

As in the case of a decision or order issued by a first-instance authority, the taxpayer should be instructed of its right to file a complaint.

The taxpayer may prepare the complaint and represent itself at hearings before the province administrative court, as no regulation requires that the taxpayer be represented by a professional attorney.

Nevertheless, the complaint must satisfy certain requirements for court pleadings:

  • Indication of the court to which a complaint is directed, the details of the taxpayer, as well as information on the taxpayer’s attorney if appointed
  • Indication of the decision, order or other act being challenged
  • Indication of the authority whose action or inaction is involved
  • Specification of the law or legal interest violated, understood as a violation of substantive or procedural law, where:
    • A violation of procedural law means the entire area of procedure or inaction on the part of the tax authority, which (on the basis of the Tax Ordinance) was allegedly violated during the course of the proceedings conducted by the tax authority
    • A violation of substantive law means the regulations under which the taxpayer was required to pay tax
  • The taxpayer’s signature
  • A list of annexes enclosed with the complaint.

The complaint must be filed in two copies.

A complaint is subject to a filing fee, which may be in a fixed amount or proportional.

If a taxpayer decides to file a complaint itself, failure to pay the filing fee will result in a summons from the administrative court to pay the fee within a specified period, usually 7 days.

The taxpayer must file the complaint with the province administrative court within 30 days from service of the decision or order of the second-instance authority. This deadline cannot be reinstated. If the deadline is not met, the complaint is ineffective.

Cassation appeal

A taxpayer may file a cassation appeal with the Supreme Administrative Court against a judgment of the province administrative court. The cassation appeal must be prepared by an adwokat, legal adviser or tax adviser.