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Defence strategies for tax proceedings with possum-playing tax administrator

A tax administrator should proceed without undue delays, keeping with the principle of promptness of proceedings and procedural efficiency. However, this is not always the case. Therefore, in the following article of our Tips and Tricks section, we focus on how to effectively defend against a tax administrator's inaction.

If the tax administrator does not proceed without undue delay during tax proceedings, the taxpayer is entitled to file a complaint with the nearest superior tax administrator. This involves situations where the tax administrator's time limit for carrying out an act has expired in vain or the act has not been carried out within the usual time limit. (As for what is the usual time limit, it suffices to consult Instruction D of the General Financial Directorate published in the Financial Bulletin). A complaint can also be lodged if the tax administrator has collected all the necessary documents but has not issued a decision without delay.

The Tax Procedure Code does not fail the taxpayer even if the above conditions have not been met. Accordingly, it is also possible to file a complaint if the tax administrator has not issued a decision and three months have passed since their last action against the taxpayer.

The complaint must meet the general requirements for filings under the Tax Procedure Code, i.e., it must be clear who is making the complaint, what it is about, and what is being proposed.

How is the complaint handled? If the superior tax administrator finds the complaint to be justified, they shall order the relevant tax administrator, no later than within 30 days of receiving the complaint, to remedy the situation. If the tax administrator does not comply with the superior tax administrator's order within 30 days, the superior tax administrator shall take such remedial action themselves and shall notify the person who made the complaint. Should the superior tax administrator fail to remedy the situation, they would also be committing inaction. Another way to deal with the complaint is to shelve it. But even in this case, the taxpayer should be notified of the superior tax administrator's decision within 30 days and should be given the reasons for such a decision.

Filing a complaint is also an important tool against the tax administrator in terms of subsequent procedural steps. If, after filing the complaint, the tax administrator (as well as the superior tax administrator) continues to be inactive in the proceedings, it is possible to file an action for protection against inaction or an action for protection against unlawful interference by the administrative authority, under the Code of Administrative Justice. Such action may only be filed on the condition that the procedural remedies against inaction under the Tax Procedure Code have been exhausted. By means of this action, the taxpayer may then seek to have the court order the tax administrator to issue a decision.