Communicated on 30 June 2016

SECOND SECTION

Application no. 55630/14 Marijan TURKALJ against Croatia lodged on 1 August 2014

STATEMENT OF FACTS

The applicant, Mr Marijan Turkalj , is a Croatian national who was born in 1969 and lives in Zagreb. He is represented before the Court by Mr A. Jureško , an advocate practising in Zagreb.

A. The circumstances of the case

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

By a decision of the Tax Administration department of the Ministry of Finance (hereinafter “the Tax Administration”) of 10 October 2009 the applicant was ordered to pay real-estate-transfer tax ( porez na promet nekretnina ) in the amount of 45,569.62 Croatian kunas (HRK).

On 26 November 2009 the applicant appealed against that decision arguing that his request for tax exemption had not been decided upon.

By a new decision of 2 April 2010 the Tax Administration: (a) replaced its earlier decision; (b) dismissed the applicant ’ s request for tax exemption; (c) ordered him to pay the real-estate-transfer tax of HRK 45,569.62; and (d) wrote off the tax debt of HRK 45,569.62. In particular, this last part (point IV) of the operative provisions read as follows:

“The following tax debt is hereby written off as regards the taxpayer Turkalj , Marijan :

- real-estate-transfer tax in the amount of HRK 45,569.62

The tax accounting service shall record the said amount as a write-off in the taxpayer ’ s tax account.”

In the reasons given for its decision the Tax Administration did not refer in any way to this part of the operative provisions.

The applicant, thinking that his tax debt had been written off, did not appeal against that decision.

On 14 May 2011 the Tax Administration issued an enforcement order against the applicant. In so doing it relied on its decision of 2 April 2010 as the enforcement title.

The applicant appealed arguing that the tax debt the Tax Administration sought to collect by issuing the enforcement order had been written off by the same decision that served as the enforcement title.

By a decision of 11 January 2012 the Ministry of Finance, as the second-instance administrative authority, dismissed the applicant ’ s appeal. The relevant part of that decision reads as follows:

“Point IV [of the operative provisions] is addressed to the tax accounting service with a view to making the relevant entry in the [applicant ’ s] tax account and is therefore of no influence on a different decision in this case.”

The applicant then brought an action for judicial review against the Ministry ’ s decision.

By a judgment of 21 November 2012 the Administrative Court ( Upravni sud Republike Hrvatske ) dismissed the applicant ’ s action. The relevant part of that judgment reads as follows:

“... the fact that a [tax] debt is written off during tax assessment [proceedings] does not call into question the lawfulness of the enforcement order because, from the statutory provision stipulating the procedure for writing off outstanding tax debt (section 137 of the General Tax Act), it does not follow that writing off the debt negates the existence of the outstanding tax debt. In accordance with statutory requirements, the writing off of the debt occurs only in a case where it is impossible to collect the established outstanding tax debt, that is to say only in the enforcement proceedings and not in the tax assessment proceedings. Therefore, the fact that in the tax assessment proceedings it was established by a final decision that the debt was written off does not at the same time mean that the debt does not exist.”

The applicant then lodged a constitutional complaint against the Administrative Court ’ s judgment. He relied on his rights to equality before the law, equality before judicial and other relevant authorities, the right to fair procedure and the right of ownership, all guaranteed by the Croatian Constitution.

By a decision of 9 January 2014 the Constitutional Court ( Ustavni sud Republike Hrvatske ) dismissed the applicant ’ s constitutional complaint and served its decision on his representatives on 4 February 2014. The relevant part of that decision reads as follows:

“In the instant proceedings for assessment of real-estate-transfer tax two first-instance decisions were adopted. The earlier one (that of 10 October 2009) established a tax obligation of a certain amount and the complainant ’ s/taxpayer ’ s tax account was debited, for accounting purposes, by that amount. After the first-instance tax authority established its own omission following the complainant ’ s appeal (it had failed to decide on the requested tax exemption ...) the said decision was replaced by a new one (that of 2 April 2010). In this way the decision of 10 October 2009 was set aside.

Consequently, the first-instance tax authority, when issuing the new decision, ordered that that the complainant ’ s tax account, which had been previously debited by the amount of tax debt established by the earlier decision (which has since been set aside), be cleared of that debt for accounting purposes. Given that by the new decision it was again established that the complainant ’ s tax obligation remained extant, the complainant ’ s tax account was again debited by the amount established by the new decision.

The above means that, without the order to write off [the previous tax debt] made by the first-instance tax authority in the disputed part IV of the operative provisions of the decision of 2 April 2010, the complainant ’ s account would have been debited twice, that is to say on the basis of both decisions. Therefore, naturally, when issuing the decision of 2 April 2010 the relevant authority had to remove such double debiting and thereby prevent that the complainant as a party to the proceedings from sustaining damage.

It follows that that the disputed write-off order (point IV of the decision of 2 April 2010) concerns the debt established by the earlier tax decision of 10 October 2009, which was extinguished. By this order the relevant service within the Tax Administration was ordered for accounting purposes to proceed in a certain way with the complainant ’ s tax account being debited, after the legal basis for that particular debiting had been set aside.”

B. Relevant domestic law

The relevant part of the General Tax Act ( Opći porezni zakon , Official Gazette, no. 147/08 with subsequent amendments), which has been in force since 1 January 2009, provides as follows:

The termination of rights and obligations arising from the tax-liability relationship Section 24(1)

“The rights and obligations arising from tax-liability [legal] relationship shall be extinguished by payment, offsetting, write-off and in other cases provided in this Act.”

Write-off of outstanding tax debt Section 137

“(1) Tax debt which cannot be collected even in enforcement proceedings shall be written off as uncollectible:

1. if the debtor has died, and has not left any movable or immovable property from which the tax debt could be paid,

...

(2)...

(3) If the execution of tax debt would jeopardise the basic living needs of the enforcement debtor and the members of his or her household, the tax debt may exceptionally, at the request of the taxpayer, be written off in whole or in part.

(4) The head of the [relevant] tax office shall by a decision decide on the write-off of outstanding tax debt referred to in paragraph 3 of this section, on the basis of a written and reasoned proposal by the taxpayer or enforcement debtor submitted to the tax office having jurisdiction over his or her [fiscal] domicile or habitual residence.”

COMPLAINTS

The applicant complains under Article 1 of Protocol No. 1 to the Convention that he was ordered to pay a tax debt that had been written off.

QUESTIONS TO THE PARTIES

1. Was the interference with the applicant ’ s peaceful enjoyment of possessions in accordance with the conditions provided for by law, as required by Article 1 of Protocol No. 1 to the Convention? In particular, was that interference foreseeable?

2. Given the confusion over whether the applicant ’ s tax debt had been written off or not, did he have at his disposal an effective domestic remedy to challenge the Tax Administration ’ s decision of 2 April 2010 , as required by Article 13 of the Convention?