Communicated on 13 September 2017

FIFTH SECTION

Application no. 58364/10 Yordan Dimitrov ANTONOV against Bulgaria lodged on 29 September 2010

STATEMENT OF FACTS

The applicant, Mr Yordan Dimitrov Antonov , is a Bulgarian national, who was born in 1940 and lives in Okorsh . He is represented before the Court by Mr M. Ekimdzhiev and Ms G. Chernicherska , lawyers practising in Plovdiv.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The 2001 tax assessments and the ensuing judicial review proceedings

In 2000-01 the tax authorities carried out a tax audit of the applicant, who at that time also acted as a legal representative of a private agricultural association. As a result, on 2 March 2001 and on 30 March 2001 the Silistra Territorial Tax Directorate issued tax assessments charging the applicant the total amount of 55,013.41 Bulgarian levs (BGN, approximately 28,127 euros (EUR)) as value-added tax (“VAT”) and income taxes, including interest. The applicant did not seek judicial review and the acts entered into force.

On 11 April 2003 the applicant sought from the Director of the Varna Regional Tax Directorate to set aside the 2001 tax assessments as having been issued in breach of the tax legislation and to conduct a new tax audit. In a decision of 18 April 2003 the Director refused that request. The applicant brought a legal challenge before the court. In a final decision of 10 January 2004 the Varna Regional Court quashed the director ’ s decision and sent the case file back to the tax authorities instructing them to assign a new tax audit.

2. The 2004 tax assessment and the ensuing judicial review proceedings

On 18 May 2004, after having conducted a new audit, the tax authorities issued another tax assessment charging the applicant the total amount of BGN 46,788.95 (approximately EUR 23,922) as VAT and income taxes, including interest. The applicant sought judicial review. In a judgment of 28 August 2006 the Varna Administrative Court quashed the 2004 tax assessment. That judgment was upheld on 29 October 2007 by the Supreme Administrative Court. The courts found the taxes imposed on the applicant to be unlawful, as the activity subject to taxation had been carried out by the agricultural association and not by the applicant himself.

3. Proceedings for tax return and the ensuing judicial review proceedings

While the judicial review proceedings of the 2001 and 2004 tax assessments were underway, provisional enforcement proceedings were opened against the applicant. It appears that from 2001 until 2007 a public enforcement officer collected in total BGN 42,386.71 (approximately EUR 21,671).

In November 2007 the applicant sought to have the money he had paid under the 2001 and 2004 tax assessments returned. In decisions of 27 November 2007 and 13 December 2007 the tax authorities refused do so. They noted that although the courts had set the 2004 tax assessment aside, the 2001 acts had remained valid and the taxes imposed on the applicant had been correctly collected.

The applicant sought judicial review of those decisions in two separate sets of proceedings. In a final judgment of 28 November 2008 the Supreme Administrative Court found the taxes charged on the applicant under the 2001 assessment acts to have been unduly paid. The court acknowledged that the 2001 tax assessments had been replaced by the 2004 act, which had also been set aside by the courts. Accordingly, the sums paid by the applicant pursuant to those tax assessments had to be refunded. The Supreme Administrative Court then quashed the decision of 13 December 2007 and referred the case file back to the revenue authorities instructing them to apply the procedure for offset or refund of undue taxes provided in the Tax and Social Security Procedure Code 2006.

On 15 December 2008 the Supreme Administrative Court also set aside the tax authorities ’ decision of 27 November 2007. Likewise the court established that the sums collected from the applicant under the 2001 and 2004 tax assessments had not been owed and had to be returned to him, including payment of the statutory interest.

4. The applicant ’ s attempts to obtain enforcement of the Supreme Administrative Court ’ s final judgments of 28 November 2008 and 15 December 2008

Referring to the Supreme Administrative Court ’ s judgments of 28 November 2008 and 12 December 2008 the applicant requested from the tax authorities to have the sums paid under the 2001 and 2004 tax assessments reimbursed, including interest. On 13 January 2009 and 10 February 2009 he was informed that the administrative proceedings had been stayed awaiting the outcome of unspecified court proceedings.

Meanwhile, in January 2009 the revenue authorities sought to have the judgment of 28 November 2008 declared null and void. The claim was later coupled with a request for reopening of the proceedings. On 13 July 2010 the Supreme Administrative Court dismissed both claims.

It appears that on 26 May 2009 the applicant requested again to have the sums reimbursed. On 8 June 2009 the tax authorities refused to so. There is no information whether the applicant lodged a legal challenge against that decision.

On an unspecified date in 2009 he brought a claim before the Varna Administrative Court requesting the court to impose a financial sanction on the Director of the Varna Tax Office on grounds of Article 304 of the Code of Administrative Procedure which provides that an official who fails to fulfil an obligation arising from an enforceable judicial act shall be fined from BGN 200 to BGN 2,000 (approximately EUR from 102 to 1,022). The outcome of those proceedings is unknown.

5. Proceedings under the State and Municipalities Responsibility for Damage Act

On an unspecified date in 2009 the applicant brought against the tax authorities a civil claim under the State and Municipality Responsibility for Damage Act (the SMRDA) seeking pecuniary and non-pecuniary damage as a result of their failure to comply with the Supreme Administrative Court ’ s final judgments and to refund him the money collected under the tax assessments.

On 29 May 2009 the Silistra Administrative Court decided to split the proceedings into four different claims. In final judgments of 28 June 2010, 12 July 2010, 4 October 2010 and 22 November 2010 respectively, the Supreme Administrative Court dismissed all applicant ’ s claims. The court noted that as Article 128 et seq. of the Tax-Insurance Code provided for a special procedure for offset and refund of undue taxes, the SMRDA could not be applied.

Meanwhile, on 6 August 2010 the applicant submitted a fresh request for reimbursement. On 13 September 2010 he received a copy of an order issued by the Varna tax authorities staying the administrative proceedings on grounds of unspecified pending appeal proceedings.

On the date of the applicant ’ s latest correspondence with the Court in June 2011, he had still not received repayment.

B. Relevant domestic law and practice

1. Enforcement of final administrative court judgments

The relevant provisions governing the enforcement of final administrative court judgments under the Code of Administrative Procedure 2006 (“the 2006 Code”) have been summarised in Yagnina v. Bulgaria , no. 18238/06, §§ 21-22, 27 January 2015 and Dimitar Yanakiev v. Bulgaria (no. 2), no. 50346/07, §§ 30-35, 31 March 2016. The relevant provisions governing the enforcement of such judgments before the adoption of the 2006 Code have been summarised in Yagnina v. Bulgaria , cited above, §§ 19-20.

2. State liability for damages

The relevant provisions governing State liability for unlawful acts and omissions under the State and Municipality Responsibility for Damage Act 1988 (“the SMRDA”) have been summarised in Dimitar Yanakiev , cited above, §§ 36-37.

3. Tax refund proceedings

Before 2006, the Tax Procedure Code of 1999 as in force until January 2006, provided that the obligation established by virtue of a tax assessment shall be voluntarily paid by the taxpayer within fourteen days. After the expiry of that term, the tax assessment becomes enforceable irrespective of the ensuing judicial review proceedings brought by the taxpayer, unless its execution has been stayed.

Articles 129-132 of the Tax and Social Security Procedure Code of 2006, as in force since 1 January 2006, regulate the procedure for offset and refund of unduly paid or collected sums for taxes and other public debts. The proceedings are opened at the request of the taxpayer or at the initiative of the tax authorities. Pursuant to the request, the revenue authorities could carry out an audit or an inspection. In particular, Article 128(5) provides that within thirty days from the submission of an enforceable court judgment or administrative act which has recognised in favour of a debtor the right to be reimbursed, the revenue authorities shall offset or refund, including interest, any sums that were erroneously or unduly paid or collected for taxes, compulsory social security contributions, fees, fines, pecuniary penalties (Article 129(5), point 1); as well as any amounts whose refunding has been unlawfully refused (Article 129(5), point 2).

Any unduly paid or collected sums, with the exception of compulsory social security contributions, shall be refunded with the statutory interest, where the said amounts have been paid or collected pursuant to an act issued by a revenue authority.

The tax authorities ’ decisions to offset or refund or their refusals to do so, including tacit refusals, are amenable to review. The appeal shall first be lodged with the superior revenue authority, whose decision could then be challenged before two levels of court.

COMPLAINTS

1. The applicant complains under Article 1 of Protocol No. 1 to the Convention that the Supreme Administrative Court ’ s final judgments of 28 November 2008 and 12 December 2008 in his favour were not implemented and that the tax authorities refused to refund him the money he had paid under the tax assessments which had been set aside.

2. He further complains under Article 13 that he did not have effective domestic remedies in respect of his grievance under Article 1 of Protocol No. 1.

QUESTIONS TO THE PARTIES

1. Did the failure of the authorities to comply with the final judgments of the Supreme Administrative Court of 28 November 2008 and 12 December 2008 amount to an unlawful or unjustified interference with the applicant ’ s right to peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?

2. Did the applicant have at his disposal effective domestic remedies for his complaint under Article 1 of Protocol No.1, as required by Article 13 of the Convention?

The parties are invited to submit all relevant information and documents following the stay of the administrative proceedings in September 2010, including a copy of the tax assessment of 30 March 2001 ( АПДРА № 49/30.03.2001 ). They are also requested to specify the outcome of the proceedings under Article 304 of the Code of Administrative Procedure against the Director of the Varna Tax Office. Finally, the parties should provide information whether the applicant has received reimbursement of the alleged sums.