Constitutional Court on 8 October 2013 constitutional complaint reference no. SK 40/12 considers that the application of the compulsory mortgage in the context of ‘reasoned concerns of the default of a tax liability’ is in line with the Constitution, but considers it contrary to the full exemption of the limitation of tax liabilities secured by the compulsory mortgage.
The constitutional action concerned the decision of the Director of the Tax Control Office, the subject of which was to secure the assets of the applicant company, a tax liability. The Director of the Tax Chamber maintained this decision by the tax authority first instances.
The Provincial Administrative Court dismissed the complaint of the applicant company to the decision of the Director of the Tax Chamber. The applicant company lodged a cassation action against the judgment of the WSA which the NSA dismissed, the company lodged a constitutional complaint.
The Constitutional Court ruled that the basis for the "reasoned fear of non-compliance" was not intended to limit the scope of the judicial review of the decision to apply a compulsory mortgage at the time of the tax audit carried out by administrative courts, and its scope does not exceed constitutional standards. It enables the tax authorities to determine the relationship between the taxpayer's property right and the obligation to pay taxes.
The Constitutional Tribunal found regulation to be incompatible Article 70 section 8 Tax Ordinance, to the extent that it provides that tax liabilities secured by mortgages or by a tax liability are not subject to limitation.
Recognising the constitutionality of the total exemption of the limitation of tax obligations, The Constitutional Court considered that the absence of a statute of limitations resulted in the distinction between the scope of the taxpayer's temporal obligations and the criterion of ownership of the property for which a compulsory mortgage is established, regardless of the scope of tax claims.
The objective of ensuring maximum tax collection can be achieved by using less burdensome methods, e.g. interruption of the limitation period for tax checks.
According to the Constitutional Court, "the total absence of limitation of claims secured by compulsory mortgages therefore constitutes an excess of the scope of the regulatory freedom of the legislator in the field of tax law."
Judgment of the Constitutional Court means that the legislator should adapt the provision Article 70(8) to the requirement to comply with the constitution, while even before this happens, taxpayers may defend themselves against suspension of the statute of limitations by referring directly to the judgment commented on.