CEDH · CASELAW;COMMUNICATEDCASES;ENG — 1 décembre 2023

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 18 December 2023   THIRD SECTION Application no. 25466/20 BURG OIL AD against Bulgaria lodged on 15 June 2020 communicated on 1 December 2023 SUBJECT MATTER OF THE CASE The application concerns, under Article 1 of Protocol No. 1 to the Convention, the refusal of the tax authorities and the Supreme Administrative Court (“SAC”) to refund overpaid tax to the applicant company despite several final judgments in its favour. On 25 July 2003, the tax authorities issued a tax assessment, imposing tax duties on the applicant company in addition to an originally due amount. The applicant company challenged the tax assessment and in a final judgment of 1 August 2005, the SAC quashed it for part of the imposed tax. The remaining due tax under the tax assessment of 25 July 2003 was estimated by the SAC at approximately 25,000 Bulgarian levs (BGN). On 30   September 2005, a public bailiff withheld BGN 135,930.47 (approximately 70,000 euros (EUR)) from the bank account of the applicant company to cover the outstanding amount under the tax assessment of 25 July 2003 plus another amount, which, according to the tax authorities, had meanwhile become due. In October 2005 the applicant company challenged the enforcement order of the public bailiff. The tax authorities were constituted as an interested party but did not take part in the proceedings. In a final judgment of 31 May 2007, the SAC found that the entire amount of BGN 135,930.47 was unlawfully withheld and that as of 30 November 2003 the applicant company had already covered all due debt under the tax assessment of 25 July 2003. Therefore, the actions of the public bailiff, dated 30 September 2005, were unlawful. In parallel, in November 2005, the applicant company requested the reimbursement of the amount withheld by the tax authorities which repaid part of it, equal to BGN   32,504. The applicant company challenged the refusal for the repayment of the remaining part. In a final judgment of 6 April 2007, the SAC quashed the refusal, held that the amount of BGN 118, 089 was still due by the tax authorities and ordered them to repay it, allowing however an eventual set-off with other tax obligations of the applicant company, if such obligations have become due in the meantime. Following a fresh request by the applicant company, the tax authorities issued another refusal in November 2007 stating that the withheld amount covered tax due under the tax assessment of 25 July 2003. The SAC in a final judgment of 9 June 2009 and after an analysis of the previous court judgments, rejected this argument and held that the tax authorities still owed the applicant company BGN 118,089. New refusals and new challenges followed in which the amount of BGN   118,089 was split into two refusals of the tax authorities concerning the amounts of BGN 54,465.76 and BGN 63,623.24 respectively. In another refusal of January   2016 for BGN   54,465.76 the tax authorities acknowledged the debt to the applicant company but argued that this obligation was already time-barred. On 26 October 2017 the SAC quashed this refusal holding that the request for refund was not time-barred. Similarly, with respect to the amount of BGN 63,623.24, the SAC, in a final judgment of 20 February 2019, quashed another refusal of the tax authorities, in which they claimed that the debt was time-barred. On 6 July 2018 the tax authorities issued another refusal to reimburse BGN   54,465.76 to the applicant company on the ground that the sum was already set off against debt of the applicant company stemming from the tax assessment of 25 July 2003. In the subsequent judicial review proceedings, the Burgas Administrative Court, on the basis of an expert report, quashed the refusal and found, that the applicant company had no debt against which a set off could have been executed. The SAC in a final judgment of 16 December 2019, however, reversed the lower court’s judgment, succinctly holding that the set off against due tax under the tax assessment of 25 July 2003 was correct, without providing any further reasons. The applicant company complains under Article 1 of Protocol No. 1 to the Convention that for twelve years the tax authorities have persistently refused to return overpaid tax, forcing the company to appeal their refusals on a regular basis and despite the final judgments in its favour. In addition, its request for refund of BGN 54,465.76 was ultimately rejected by the SAC on 16   December 2019. According to the applicant company, the latter judgment of the SAC was arbitrary and disregarded the findings of the previous final judgments, which had confirmed that it had no due obligations under the tax assessment of 25 July 2003, including the expert report, accepted by the first instance court, under the latter proceedings. It therefore claims a breach of the legal certainty principle. QUESTION TO THE PARTIES Has there been an interference with the applicant company’s peaceful enjoyment of possessions within the meaning of Article 1 of Protocol   No.   1, having due regard to the continuous refusal of the tax authorities to return the amount recognised as unduly withheld in final judgments in its favour, followed by the rejection of its consecutive appeal in the judgment of the Supreme Administrative Court of 16 December 2019 (see Burdov v. Russia , no.   59498/00, §§ 39-41, ECHR 2002‑III, Buffalo S.r.l. en liquidation v. Italy , no. 38746/97, §§ 32-40, 3 July 2003)?   If so, was that interference in the public interest and did it impose an excessive individual burden on the applicant company (see, Intersplav v.   Ukraine , no.   803/02, §§   38-40, 9 January 2007 and Antonov v. Bulgaria , no. 58364/10, §§ 56-65, 28 May 2020)?   The parties are invited to submit all relevant information and documents related to the proceedings which ended with the final judgment of the SAC of 16 December 2019 (e.g., claims, counterclaims, expert reports) and any new developments with respect to the impugned amounts. Specifically, the Parties are invited to inform the Court whether the applicant company has received any refund of the impugned amounts since the filing of the application.