AS TO THE ADMISSIBILITY OF
Application No. 12693/87
by Evert KÄLLANDER
against Sweden
The European Commission of Human Rights sitting in private
on 6 March 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 31 October 1986
by Evert Källander against Sweden and registered on 27 January 1987
under file No. 12693/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is a Swedish citizen, born in 1931. He is a
businessman and resides at Nyköping, Sweden.
A. Particular facts of the case
It appears that the County Administrative Board
(länsstyrelsen) in 1979 started an investigation into the applicant's
tax declarations. On 8 September 1980 the local Tax Assessment Board
(taxeringsnämnden) issued an assessment of the applicant's taxable
income for the years 1976 to 1980 in which it was suggested that the
applicant's taxable income should be increased by 46,000 Swedish
crowns due to the fact that he had not, in the authorities' opinion,
declared his income properly.
Following certain correspondence between the parties, the
local Tax Assessment Board submitted an application for additional
assessment to the County Administrative Court (länsrätten) of
Södermanland. In the application it was also suggested that the
applicant pay a special charge (tax supplement) (skattetillägg) in
accordance with Section 116 (a) of the Act on Taxation (taxeringslagen).
After having obtained further written observations from the
parties the County Administrative Court decided in two judgments of 20
December 1982 that the applicant's taxable income should be increased
by 33,300 Swedish crowns and that a special charge (tax supplement)
should be imposed on him for the years 1976 to 1978 and for the year
1980.
The applicant appealed against this judgment to the
Administrative Court of Appeal (kammarrätten) but he was nevertheless
obliged, in 1983, to pay the tax, due as a result of his increased
taxable income, as well as the special charge (tax supplement), certain
fees and interest. On 29 October 1984 the Administrative Court of
Appeal upheld the judgment of the County Administrative Court.
The applicant subsequently applied for leave to appeal to the
Supreme Administrative Court (regeringsrätten). However, his
application was rejected by the Court on 9 May 1986.
B. Applicable domestic legislation
The procedures concerning tax investigations as well as the
levying of income taxes are dealt with in the 1956 Act on Taxation.
This Act also governs the procedure by which the tax authorities
assess the taxable income, and it also contains provisions regarding
the obligations of the taxpayer with respect to this procedure as well
as certain sanctions which may be imposed upon him in case he fails to
fulfil these obligations.
Sections 22 to 36 of the Act contain provisions concerning the
obligations of the taxpayer to submit to the tax authorities
information for the purpose of guiding them in their assessment of his
taxable income. The income tax return, submitted by the taxpayer, is
subsequently reviewed by a local Tax Assessment Board for the purpose
of assessment.
Under Section 114 of the Act on Taxation it is possible to
request an additional assessment when the taxpayer has made an
incorrect statement on a matter relevant to the assessment of his
taxable income. Such an additional assessment cannot be made by the
local Tax Assessment Board, but only by an administrative court of
first instance upon the application by a tax superintendent.
Section 116 (a) provides inter alia that a special charge (tax
supplement) shall be imposed on a taxpayer if he, in the fulfilment of
his obligation to submit information required for the assessment, has
made a statement that is found to be incorrect. The special charge
(tax supplement) amounts to 40 % (prior to 1977 it was 50 %) of that
part of his income taxes that would not have been imposed in case the
taxes had been determined on the basis of the incorrect statement.
Under Section 116 (h), the taxpayer may be relieved from the special
charge (tax supplement) if his incorrect statement is due to the
circumstances such as his age, illness or lack of experience or any
comparable reason which could make his act or omission excusable.
The decision on additional assessment and the imposition of a
special charge is taken only upon the completion of proceedings before
an administrative court in which the taxpayer is given the opportunity
to argue his case on an equal footing with the tax superintendent.
COMPLAINTS
The applicant first refers to the special charge (tax
supplement) imposed on him and notes that this may fall under Article
6 of the Convention. More particularly he alleges violations of:
1. Article 6 para. 2 in that he has been obliged to pay taxes,
special charge (tax supplement), fees and interest in 1983 although
his tax dispute was not finally decided until 1986 and in that
generally the taxpayer has to prove his innocence while tax
authorities have no burden of proof.
2. Article 6 para. 3 (a) in that he has not been informed why
his taxation was so high.
3. Article 7 para. 2 in that he has been subjected to
retroactive taxation, since certain tax instructions issued in 1981
were applied to the years 1976 to 1980 and a law regarding small
enterprises was applied to the year 1976, although the law did not
enter into force until 1977.
4. Article 14 in that the taxation of owners of small enterprises
is discriminatory and moreover there have been other cases similar to
the applicant's case where the outcome was different.
THE LAW
1. The applicant has made a number of complaints under Article 6
(Art. 6) of the Convention in regard to his disputes with the Swedish
authorities and courts concerning matters of taxation for the years
1976 to 1980. This Article, insofar as relevant, reads as follows:
"1. 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. ...
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the
following minimum rights:
(a) to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the
accusation against him;"
The Commission has constantly held that Article 6 (Art. 6) is not
applicable to proceedings regarding taxation (cf. No. 2552/65, Dec.
15.12.67, Collection 26 p. 1, No. 2717/66, Dec. 6.2.69, Yearbook 13
p. 176, No. 8903/80, Dec. 8.7.80, D.R. 21 p. 246 and No. 9908/82, Dec.
4.5.83, D.R. 32 p. 266).
The applicant has, however, also complained that he was obliged
to pay a special charge (tax supplement) although his case was still
pending before the administrative courts. He maintains that this
violates his right to be presumed innocent as secured under Article 6 para. 2
(Art. 6-2) of the Convention. Furthermore, the applicant maintains that, in
order to avoid the imposition of the special charge (tax supplement), it was he
who had to prove his innocence, which would likewise be in contravention of
this provision.
The Commission recalls that the question may arise whether
the imposition of a so-called special charge (tax supplement) could be
regarded as a determination of a criminal charge within the meaning of Article
6 para. 1 (Art.6-1) (cf. No. 11464/85, Dec. 12.5.87, von Sydow v. Sweden).
However, the Commission finds that it is not necessary to determine this issue
in the present case because if Article 6 (Art. 6) applies to the applicant's
complaints, they are in any event manifestly ill-founded for the following
reasons.
As regards the question of payment while the case was pending
before the administrative courts the Commission recalls that the
applicant under the national system had the possibility to appeal
against the judgment of the County Administrative Court. Thus the
fact that in Sweden the payment of the special charge (tax supplement)
- like the payment of taxes - has to be made after the first decision
to impose it and irrespective of any appeal does not mean that any
final position has been taken on whether the applicant would have to
pay the special charge (tax supplement). This question is examined in
the appeal proceedings and should the outcome there be in the
applicant's favour, he will be reimbursed. In these circumstances the
Commission does not find that the payment of the special charge (tax
supplement) before a final decision had been given violated the
applicant's right to be presumed innocent until proved guilty
according to law as secured by Article 6 para. 2 of the Convention.
As regards the question of the burden of proof the applicant
has submitted that the special charge (tax supplement) can in Swedish
law be imposed on a taxpayer by reason of an incorrect statement in a
tax return and irrespective of any intent or negligence, although an
exemption may be made if there are special reasons which render the
incorrect statement excusable.
The Commission notes that the question whether or not the
applicant's statement was correct was determined by the courts after
the applicant had had an opportunity to submit, on an equal footing
with his opponent, all the evidence which in his opinion would be
material to the determination of this issue. The fact that a special
charge (tax supplement), which is not in Swedish law regarded as a
criminal sanction, can be imposed irrespective of criminal intent or
negligence does not raise an issue under Article 6 para. 2 (Art. 6-2) of the
Convention.
In these circumstances the Commission finds that the applicant's
complaints under Article 6 para. 2 (Art. 6-2) of the Convention are manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant has also referred to Article 6 para. 3 (a) (Art. 6-3-a)
of the Convention alleging that he was not informed why his taxation was so
high.
This question does not relate to the imposition of the special
charge (tax supplement). Therefore the Commission sees no grounds for
deviating from its constant case-law as regards matters of taxation for
which reason this part of the application is incompatible with the
provisions of the Convention ratione materiae within the meaning of
Article 27 para. 2 (Art. 27-2).
3. The applicant has further complained that he has been subjected
to retroactive taxation and he refers in this respect to Article 7
para. 2 (Art. 27-2) of the Convention. Article 7 (Art. 7) provides:
"1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a criminal
offence under national or international law at the time when it was
committed. Nor shall a heavier penalty be imposed than the one that
was applicable at the time the criminal offence was committed.
2. This Article shall not prejudice the trial and punishment of
any person for any act or omission which, at the time when it was
committed, was criminal according to the general principles of law
recognised by civilised nations."
The Commission recalls that Article 7 (Art. 7) only concerns criminal
law and it follows that this part of the application is also incompatible
with the provisions of the Convention ratione materiae within the
meaning of Article 27 para. 2 (Art. 27-2).
4. The applicant has finally invoked Article 14 (Art. 14) of the
Convention maintaining that the taxation has been implemented in a
discriminatory manner. Article 14 (Art. 14) states:
"The enjoyment of the rights and freedoms set forth in
this Convention shall be secured without discrimination
on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social
origin, association with a national minority, property,
birth or other status."
The Commission recalls that Article 14 (Art. 14) has no independent
existence but plays a role only in order to safeguard individuals
placed in similar situations from any discrimination in the enjoyment
of the rights and freedoms set forth in the Convention and its
Protocols. When considering the applicant's complaint from this point
of view the Commission has not found, on the basis of the facts
of the case as submitted by the applicant, any appearance of
discrimination in the enjoyment of these rights and freedoms.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)