CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 mars 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        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)