FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 73053/01
by Esa JUSSILA
against Finland
The European Court of Human Rights (Fourth Section), sitting on 3 February 2004 as a Chamber composed of:
SirNicolas Bratza, President,
MrM. Pellonpää,
MrsV. Strážnická,
MrR. Maruste,
MrS. Pavlovschi,
MrL. Garlicki,
MrJ. Borrego Borrego, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 21 June 2001,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Esa Jussila, is a Finnish national, who was born in 1949 and lives in Tampere, Finland.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Striking out of the tax register
The applicant, who owned an unlimited liability company, was struck out of the tax register on 27 November 1995 by the County Tax Office of Häme (lääninverovirasto, länsskatteverk) due to his alleged failure to lodge declarations with tax authorities. He appealed to the County Administrative Court of Häme (lääninoikeus, länsrätten) which, on 10 June 1996, quashed the decision. The applicant then requested the County Tax Office to re-enter him on the tax register. The County Tax Office dismissed the application on 1 August 1996 maintaining that the applicant had continued his business under a limited liability company, which was in the tax register.
2. The first set of taxation proceedings
In the meantime, the Tax Office (verotoimisto, skattebyrå) of Tampere had made two tax inspections (dated 6 May 1996 and 18 October 1996) and effectively recommended basing the applicant’s tax assessment on a higher income than that declared by him. The applicant unsuccessfully complained to the Tax Rectification Committee (verotuksen oikaisulautakunta, prövningsnämnden i beskattningsärenden) of Tampere about three decisions concerning his regular tax assessment during the fiscal years 1994-1995 and supplementary tax assessments concerning the fiscal year 1993, both of which included tax surcharges (veronkorotus, skattetillägg). The applicant appealed to the County Administrative Court of Central-Finland, which dismissed the applicant’s complaints on 26 March 1998. The applicant sought leave to appeal from the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) which, on 13 November 1998, ruled the case inadmissible as the applicant’s request had been received one day too late. On 14 December 1998 the applicant appealed for an extension of the time-limit. On 19 April 1999 the Supreme Administrative Court refused the application.
3. The second set of taxation proceedings
On 22 May 1998 the Tax Office of Häme requested the applicant to submit his observations regarding some alleged errors in his value added tax (VAT) declarations (arvonlisävero, mervärdesskatt) for the fiscal years 1994 and 1995. On 9 July 1998 the Tax Office of Häme gave two decisions in which the applicant was, inter alia, obliged to pay tax surcharges amounting to 10% of the increased tax liability (the additional tax surcharges levied on the applicant totalled 1,836 Finnish Marks (FIM), i.e. 308.80 Euros (EUR)). The tax surcharges were based on the fact that the applicant’s VAT declarations in 1994-1995 were regarded as incomplete.
The applicant appealed to the County Administrative Court of Uudenmaa (which later became the Administrative Court of Helsinki; hallinto-oikeus, förvaltningsdomstolen). The applicant requested an oral hearing and that a tax inspector as well as an expert appointed by the applicant be heard as witnesses. On 1 February 2000 the Administrative Court of Helsinki took an interim decision inviting written observations/expert statements from the parties. On 13 June 2000 the Administrative Court dismissed the applicant’s claims. It held that an oral hearing was not necessary in the matter. The applicant requested leave to appeal from the Supreme Administrative Court, which refused leave on 13 March 2001.
B. Relevant domestic law
Section 177 paragraph 1 of the Act on Value Added Tax (arvonlisäverolaki, mervärdesskattelag; 1501/1993) provides that if a person obliged to pay taxes has failed to pay the taxes or clearly paid an insufficient amount of taxes or failed to give required information to the tax authorities, the Regional Tax Office (verovirasto, skatteverk) must assess the amount of unpaid taxes.
Section 179 of the Act on Value Added Tax provides that a tax assessment may be conducted where a person has failed to give required declarations or given false information to taxation authorities. The taxpayer may be ordered to pay unpaid taxes or taxes that have been wrongly refunded to the person.
Section 182 of the Act on Value Added Tax provides, inter alia, that a maximum tax surcharge of 20% of the tax liability may be imposed if the person has without a justifiable reason failed to give a tax declaration or other document in due time or given essentially incomplete information. The tax surcharge may amount at the most to twice the amount of the tax liability, if the person has failed without a justifiable reason to fulfil his/her duties fully or partially even after being expressly asked to provide information.
Section 38, paragraph 1 of the Act on Judicial Procedure in Administrative Matters (hallintolainkäyttölaki, förvaltningsprocesslagen; 586/1996) provides that an oral hearing must be held if requested by a private party. An oral hearing may however be dispensed with if a party’s request is ruled inadmissible or immediately dismissed or if an oral hearing would be clearly unnecessary due to the nature of the case or other circumstances.
COMPLAINTS
1. The applicant complains about the courts’ refusals to hold an oral hearing in both taxation procedures and claims that he has not had a fair trial.
2. He also complains about his being struck out of the tax register and about the tax inspections.
3. The applicant further complains about several constitutional violations in addition to his claim about a violation of his right to a fair trial (discrimination, right to liberty and security of person, right to access to public documents, right to work). The applicant does not invoke any Convention Articles.
THE LAW
1. The applicant complains about the imposed tax surcharges and the lack of an oral hearing before the County Administrative Board of Central-Finland, the Administrative Court of Helsinki and the Supreme Administrative Court. The applicant does not invoke any Convention Articles.
The Court has examined this complaint under Article 6 § 1 of the Convention which reads, insofar as relevant, as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
(a) The Court observes that in the first set of the taxation proceedings the applicant failed to apply for leave to appeal from the Supreme Administrative Court in due time, which led the Supreme Administrative Court to rule the application inadmissible. The Court finds that this discloses a failure to exhaust domestic remedies as required by Article 35 § 1 of the Convention and therefore rejects this part of the complaint pursuant to Article 35 § 4 of the Convention.
(b) As for the second set of taxation proceedings the Court decides to adjourn the further examination of this part of the application pending its communication to the respondent Government.
2. The applicant complains about his being struck out of the tax register and about the two tax inspections. The applicant does not invoke any Convention Articles.
The Court has examined this complaint under Article 6 of the Convention (see above) and Article 1 of Protocol No. 1 to the Convention, which reads, insofar as relevant, as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
(a) As regards the striking out of the tax register, the Court finds that, assuming any effect on property rights arising from this measure and assuming exhaustion of domestic remedies, any complaints are out of time under the six months rule pursuant to Article 35 § 1 of the Convention. The final decision was given on 1 August 1996 whereas the application was lodged on 21 June 2001. The Court rejects this complaint pursuant to Article 35 § 4 of the Convention.
(b) As regards the tax inspections, the Court notes that it has been established in its case law that tax matters fall outside the scope of civil rights and obligations pursuant to Article 6 of the Convention (see Ferrazzini v Italy [GC], no. 44759/98, § 29, ECHR 2001‑VII). It accordingly rejects this complaint as incompatible ratione materiae pursuant to Article 35 § 3 and 4 of the Convention.
3. As regards the remainder of the applicant’s complaints the Court observes that they are vague and that it is not apparent to what extent they fall within the scope of the Convention or whether the applicant has complied with the requirements of Article 35 § 1 of the Convention. In these circumstances no appearance of a violation of the Convention arises and this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 § 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning[Note1] the lack of an oral hearing before the Administrative Court of Helsinki and the Supreme Administrative Court in the second set of taxation proceedings;
Declares the remainder of the application inadmissible.
Michael O’BoyleNicolas Bratza
RegistrarPresident
[Note1]Summarise the complaints without necessarily citing the invoked Convention Articles.
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