Reviving a common sense approach to withholding excessive deductions
The defender prepared a difficult task for the Czech tax administrator. In judgment file no. II. ÚS 819/18, dated 22 February 2019, it opposed its previous practice in withholding excessive deductions. So far, the tax administrator withholds the deduction, including the undisputed amount that the tax administrator had no doubt about from the outset, and which the taxpayer was almost certainly entitled to. The tax authorities will have to assess and redeem the undisputed part of the excess tax deduction.
The difficult path of the undisputed part of the deduction from the tax administrator to the Constitutional Court started with the tax entity, who in the present case requested the tax administrator to narrow the scope of the tax audit only to the part of taxable supplies for which the tax administrator had doubts and simultaneously wanted to return part of the excessive deduction about which the tax administrator had no doubts.
In similar cases, the tax administrator has so far withheld both the disputed and undisputed part of the excessive deduction because it considered that it cannot proceed otherwise according to the current wording of the Tax Code.
However, the Constitutional Court did not agree with this approach and in its judgment reminded the tax administrator that, just as it did not have a statutory procedure for the separation of the disputed part, it did not have the power to withhold the undisputed amount of excess deduction. According to the Constitutional Court, the absence of an amendment to the process in the Tax Code must give way to the protection of property rights.
Even though this involved a topic long-discussed among tax advisors and entrepreneurs but not yet reflected in the tax administration, it is to be hoped that thanks to the Constitutional Court’s clear ruling, the financial administration will accede to the above-mentioned arguments and fully respect them.
 Inspired by the statement of Judge NSS Karel Šimka in regard to the finding in file no. II. ÚS 819/18: “The finding of the Constitutional Court is an example of ‘common sense activism’.” Available here: https://www.ceska-justice.cz/2019/03/nalez-k-zadrzovani-dph-je-prikladem-aktivismu-zdraveho-rozumu-mini-soudce-simka/
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