Dear Readers,
This article is to inform you about a recent judgment of the Supreme Administrative Court in the Czech Republic (the “SAC”) in case 1 Afs 271/2021 – 90, HP TRONIC-prodejny elektro a.s. (hereinafter the “Company”). In that judgment, the SAC dealt with quantification of indirect costs of investments’ holding (among other things) that, due to their nature, are considered tax non-deductible costs (Section 25 (1) (zk) of the Income Tax Act).
What Was the Above-mentioned Judgment About?
The Company applied costs related to holding of investments in subsidiaries as tax non-deductible overhead (indirect) costs at those costs’ actual level in a tax return in compliance with Section 25 (1) (zk) of the Income Tax Act (the “ITA”).
The tax administrator, based on excluding received dividends from the tax base (in compliance with Section 19 (1) (ze) of the ITA), called the Company to document the level of direct costs. In addition to this, the tax administrator called the Company to prove that the actual amount of the overhead (indirect) costs is less than 5% of income from the dividends and shares of profit. Based on the provided documentation, the tax administrator arrived at a conclusion that the Company failed to sufficiently remove the administrator’s doubts and it imposed an additional corporate income tax and related penalty on the taxable person.
Reasoning of the Appellate Finance Directorate (the “AFD”) and the Regional Court (the “RC”)
Referring to an appeal procedure, the AFD agreed with the tax administrator’s steps and the conclusion that the Company failed to prove that overhead (indirect) costs related to the holding of an investment were lower than 5% of the dividend income. As a result of repeated changes in assertions and failure to provide evidence, the Company’s testimony was, in the AFD’s view, inconsistent and unreliable. This made the AFD believe that the Company’s proving was purposeful and the Company failed to prove both the level and the method of calculating the actual incurred costs.
In addition to this, the AFD stated that it was impracticable to clearly identify a key to allocate costs attributable to the holding of investments in a subsidiary in the submitted calculations of indirect costs due to the application of differing mechanisms of individual costs’ allocation. In the AFD’s opinion, it is impossible to accept the actual level of overhead (indirect) costs if a company is unable to prove and justify the calculation mechanism.
Quite to the opposite, the Regional Court acknowledged that the Company’s objections in the particular case were justified. It referred to the SAC’s decision-making practice whereby it is impossible to calculate an accurate value of actual overhead (indirect) costs. In the RC’s view, it is important to establish a comprehensible calculation algorithm that, in fact, was provided by the Company in the RC’s opinion. As a consequence, the RC referred the case back for an additional procedure to the AFC that challenged the RC’s judgment in a cassation complaint.
SAC’s Statement
In the judgment’s opening, the SAC states that taxable persons have two options in calculating costs that cannot be recognised as tax deductible: The first option is to determine such costs’ level at 5% of income from the share of profit. If the taxable person believes that those costs are lower, it is authorised to determine the costs’ actual level. However, the SAC brings attention to the fact (and refers to Judgment No. 3 Afs 170/2019- 27) that provability (the burden of proof) of such costs’ calculation and identification lies with the taxpayer (Section 93 (1) of the Tax Code).
The Company first claimed that it did not incur any indirect costs attributable to the investment’s holding. It was only after objections raised in the procedure that the Company decided to provide such costs’ calculation. In addition to that, it made random estimates and was unable to properly prove changes in calculations. In the SAC’s opinion, such calculations cannot be considered a reliable way of proving and allocating real costs. The SAC also noted that a calculation that was developed for a certain company cannot be used to calculate costs of another corporation with a proportionate re-allocation of costs.
In the SAC’s view, proving of overhead (indirect) costs that are attributable to the holding of an investment in a subsidiary is a specific issue. As those costs are tax non-deductible, it is impossible to only recognise a portion of a taxable person’s costs that were proven by that person because it would have contradicted Section 25 (1) (zk) of the ITA (any and all costs are lower than 5% of dividend income).
The Company only estimated actual costs and the SAC therefore agrees with the application of the lump sum amount of 5%. Where the taxable person is unable to reliably prove the actual level of costs, it is obliged to exclude costs in the lump sum amount of 5%. Otherwise a taxpayer’s tax liability is being purposefully reduced.
Stela Bartošová Michaela Kozminská
bartosova@edmutilitas.cz kozminska@edmutilitas.cz