Anna Marzec
Specifying Tax Obligation Procedure relating to the Confirmation of an Overpayment of Tax
Summary
This publication is concerned with the issue of the factual circumstances concerning the taxpayer, in which the author tries to answer the following question: is the tax authority able to resolve cases concerning the amount of income tax due during the course of a proceeding relating to the overpayment of tax?
Whilst there is an ongoing proceeding to determine the amount of income tax due, a proceeding concerning confirmation of an overpayment of tax relating to the same case cannot be implemented. However no regulation exists which bans concurrent proceedings. Therefore, a situation can exist in which the tax authority can be obliged to determine the amount of the income tax due and at the same time resolve a case relating to the overpayment of tax.
Taking into consideration binding legal conditions and following the change of art. 21 § 3 of the Ordinance Tax as well as ambiguous decisions made by the administrative courts in relation to this, the author provides a solution for this situation. In the course of a tax proceeding being implemented at the request of the taxpayer concerning the specification and /or the return of an overpayment of tax, the tax authority will not only confirm that an overpayment of tax has not happened but it will be also obliged to determine the income tax due at an amount no higher than the amount established by the taxpayer in the original submitted declaration.
The author pays specific attention to the fact that in order to solve a case relating to the overpayment of tax it is essential to establish exactly how much income tax is due. However, a verdict concerning income tax, based on the taxpayer’s tax return, constitutes a breach of the basic rights of the applicant, in that the tax authority is obliged to specify the income tax based on a higher figure than that originally declared by the taxpayer.
The tax authority is constrained by the information provided by the taxpayer in his return Therefore, any procedure based “at the request” can only be resolved by either accepting or not accepting the contents of the return. For the same reasons the motion made by the tax return cannot be analyzed by means of a procedure which annuls its contents.
According to the author, the only solution is to issue a separate decision which establishes the amount of the income tax due and then pursuant to this taking a decision to either negate or confirm any overpayment of tax.