Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25994/94

by Josef JUPIN

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 1997, the following members being present:

Mrs G.H. THUNE, President

MM J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 September 1994

by Josef Jupin against Sweden and registered on 19 December 1994 under

file No. 25994/94;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 26 November 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Swedish citizen born in 1934 and residing in

Uppsala, is a businessman.

In so far as relevant to the remaining complaint following the

Commission's partial decision as to the admissibility of 15 May 1996,

the facts of the case, as submitted by the parties, may be summarised

as follows.

By decision of 24 May 1988, the Local Tax Assessment Board

(taxeringsnämnden) fixed the applicant's taxable income at 8,200 SEK

for the income year 1987. Save for a miscalculation, it was fixed in

accordance with the information supplied by the applicant in his annual

tax return.

After a tax audit of the applicant's companies, the County Tax

Authority (länsskattemyndigheten) of the County of Uppsala, on

28 June 1989, appealed to the County Administrative Court (länsrätten)

of the County of Uppsala to have the applicant's taxable income raised.

The tax authority further claimed that a tax supplement (skattetillägg)

should be imposed on the applicant.

By judgment of 3 December 1992, the County Administrative Court

raised the applicant's taxable income to 87,300 SEK. The court found

that the applicant should be taxed, inter alia, for a swimming pool

which had been constructed at the applicant's summer house and for

certain purchases of private items, all of which had been entered in

the books of one of the companies as deductions to set off its profits.

As the raised taxable income, in its entirety, was considered to be

related to incorrect information supplied by the applicant in his tax

return, the court further decided, under Sections 116 a and 116 b of

the Taxation Act (Taxeringslagen, 1956:623), to impose a tax supplement

equivalent to 40 per cent of the tax levied on 79,100 SEK, i.e. on the

amount by which the taxable income was raised.

The applicant appealed to the Administrative Court of Appeal

(kammarrätten) in Stockholm, claiming that his taxable income should

be fixed in accordance with the decision of the Local Tax Assessment

Board. He did not appeal against the decision to impose the tax

supplement. Nevertheless, Section 116 p of the Taxation Act provides

that if there are reasons to reduce the taxable income fixed by an

appealed decision, the courts examining the appeal shall ex officio

make a corresponding recalculation of the tax supplement imposed.

However, a review on the merits of the tax supplement decision as such

can only be obtained by lodging an appeal against that decision.

On 2 May 1994 the appellate court, agreeing with the County

Administrative Court's assessments, upheld its judgment.

On 7 March 1995 the Supreme Administrative Court (Regerings-

rätten) refused the applicant leave to appeal.

COMPLAINTS

Following the Commission's partial decision of 15 May 1996, the

only remaining complaint concerns the length of the proceedings in the

case concerning income tax and tax supplement. The applicant has

invoked Article 6 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 September 1994 and registered

on 19 December 1994.

On 15 May 1996 the Commission (Second Chamber) decided to adjourn

the examination of the applicant's complaint that the case in which a

tax supplement was imposed on him was not determined within a

reasonable time and to declare inadmissible the remainder of the

application. The Commission further decided to give notice of the

adjourned complaint to the respondent Government and invite them to

submit written observations on the admissibility and merits thereof.

On 19 June 1996 the applicant applied for legal aid and he was

requested to submit the necessary documents by 25 July 1996. This

request remained unanswered.

The Government's observations were submitted on 26 November 1996,

after two extensions of the time-limit fixed for that purpose. The

Government maintained that the application is inadmissible for failure

to exhaust domestic remedies or for being incompatible ratione materiae

with the provisions of the Convention.

A copy of the Government's observations was forwarded to the

applicant on 3 December 1996. He was invited to submit his

observations in reply before 4 February 1997.

By letter of 12 February 1997, the applicant was reminded that

the period for the submission of his observations had expired without

any request for an extension of the time-limit having been received.

He was further informed that, under Article 30 para. 1 (a) of the

Convention, the Commission may strike an application out of its list

of cases where the circumstances lead to the conclusion that the

applicant does not intend to pursue his application.

On 22 February 1997 the applicant asked for an extension of the

time-limit until May/June 1997. On 3 March 1997, the applicant was

informed that the President of the Second Chamber had agreed to extend

the time-limit until 30 April 1997.

By letter of 7 May 1997, the applicant was reminded that the new

time-limit had been exceeded. Again, the applicant's attention was

drawn to Article 30 para. 1 (a) of the Convention. The applicant did

not reply to this letter, nor did he submit a reply to the Government's

observations. The reminder sent to him by registered mail on

11 June 1997 also remains unanswered.

REASONS FOR THE DECISION

The Commission observes that the first time-limit fixed for the

submission of the applicant's reply to the observations submitted by

the Government was exceeded without the applicant having requested an

extension of that time-limit. Reminded thereof, the applicant later

made such a request and was granted an extension until 30 April 1997.

However, the applicant has also failed to observe this time-limit,

despite the reminders sent to him on 7 May and 11 June 1997. Thus, he

has not submitted any reply to the Government's observations.

In these circumstances and having regard to Article 30

para. 1 (a) of the Convention, the Commission concludes that the

applicant does not intend to pursue his application. Moreover, as

regards the issues raised in the present case, the Commission finds no

reasons of a general character affecting respect for human rights, as

defined in the Convention, which require a further examination of the

application by virtue of Article 30 para. 1 in fine.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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JUPIN v. SWEDEN

JUPIN v. SWEDEN

LEXI