Lexploria

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)

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KÄLLANDER v. SWEDEN

KÄLLANDER v. SWEDEN

LEXI