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Austria / Constitutional Court / G302/2019

Constitutional Court

Policy area:
Taxation
Deciding Body type:
National Court/Tribunal
Deciding Body:
Constitutional Court
Type:
Decision
Decision date:
26/06/2020
ECLI:
AT:VFGH:2020:G302.2019

Key facts of the case: 

A complainant filed an appeal against an income tax assessment. The Federal Tax Court (Bundesfinanzgericht) dismissed the application for the granting of procedural assistance and justified this by stating that the legal question to be decided did not present any particular difficulties of a legal nature and therefore the conditions for the granting of procedural assistance according to §292 (1) Austrian Federal Tax Code (Bundesabgabenordnung) did not exist. According to the Federal Tax Court, the question to be decided in the underlying tax proceedings is not an unclarified, particularly complex legal question, but rather "an assessment of evidence to be solved purely on the level of the facts"; the applicant also did not point out any particular difficulties of a legal nature.

In dealing with the complaint directed against this decision, doubts arose in the Constitutional Court as to the constitutionality of §292 (1) Austrian Federal Tax Code in the version of Federal Law Gazette I 117/2016. The Constitutional Court therefore decided on 11 December 2019 to examine this provision of the law ex officio for its constitutionality.

Key legal question raised by the Court:

Is §292 Austrian Federal Tax Code (Bundesabgabenordnung, BAO) in the version of Federal Law Gazette I 117/2016 stipulating that procedural assistance in tax proceedings may only be granted if “legal questions to be decided show particular difficulties of a legal nature” constitutional?

Outcome of the case:

Although the wording of §292 BAO might initially suggest that the granting of procedural assistance is only permissible if objectively difficult questions of a legal nature have to be decided in the proceedings, the provision may be applied in individual cases such as the present case according to the Constitutional Court. This is also based on the fact that the legislature intended to introduce procedural assistance for proceedings before the Federal Finance Court "to establish a legal situation that corresponds to Art 47 CFR".

The Constitutional Court found that the phrase "that legal questions to be decided show particular difficulties of a legal nature" enshrined in §292 BAO requires and permits an examination of whether particular difficulties exist for the applicant in the concrete individual case. In doing so, all circumstances of the case such as the subject matter of the dispute, the reasonable prospects of success of the party seeking legal protection, the significance of the dispute for the party seeking legal protection, the complexity of the applicable law and the applicable procedure as well as the ability of the party seeking legal protection to effectively defend its case must be balanced.

Thus, §292 (1) BAO does not exclude the granting of procedural assistance in individual cases simply because objectively there is no complex, particularly difficult question of a legal nature. On the one hand, if interpreted in conformity with the constitution, special difficulties in determining the legally relevant facts, i.e. questions of a factual nature, can also justify a claim to procedural assistance, especially since questions of fact regularly lead to questions of law; and on the other hand, the ability of the applicant concerned to effectively represent his or her concern must always be taken into account.