Nepripustnost zasahove zaloby proti nenarizeni prezkumneho rizeni

Inadmissibility of an action for interference against the failure to order a review procedure

One of the procedural procedures of the Tax Code, in which it is assessed whether the decision of the tax administrator was issued in accordance with the law, is the so-called review. Unlike an appeal, a review is initiated ex officio; the taxpayer can only file a letter asking the tax authority to start the review (without having the legal claim against the tax authority).

In a recent decision[1], the Supreme Administrative Court considered whether a taxpayer can seek to initiate a review by means of an action against unlawful interference (an action for interference).

The taxpayer argued that if case law considers permissible to bring an interference action against the tax administrator's failure to act within  a tax audit, an interference action should also be allowed to assert "positive" rights in the matter of review. At the same time, the taxpayer was convinced that, without the possibility of successfully bringing an action for intervention, the tax administrator's decision to order a review would rest purely at its discretion (contrary to constitutional law).

However, the Supreme Administrative Court found the taxpayer's objections unfounded. It stressed that the review procedure is a supervisory remedy, not correcting remedy (e.g. an appeal), there is no legal claim to initiate it or to issue a decision and it serves to protect objective law, not to protect subjective rights. The taxpayer had the possibility of pursuing its subjective rights by bringing an administrative action against the decision of the Appellate Financial Directorate on the merits, which it did.

In practice, we see taxpayers attempting to resolve a missed deadline (or other situation) by initiating a review. The Court's decision reaffirms that taxpayers have no legal claim to initiate a review. Thus, the taxpayer has to convince the tax administrator in a single document that the law has indeed been violated and a review should be initiated. Our recommendation is therefore to pay maximum attention to the clear and convincing arguments in the petition for review.

If you would like further information, please contact the authors of the article or other members of the EY team with whom you work.

Authors:

Jakub Tměj

Petr Sedláček

[1] Judgment of 9 April 2024, no. 6 Afs 113/2023-36.