Dear Readers,
This article will inform you about Judgment of the Czech Supreme Administrative Court (the “SAC”) Ref. No. 8 Afs 370/2021-43 dated 3 October 2023. In that judgment, the SAC dealt with the notification obligation in case of generating exempt income of a natural person (the “Plaintiff”) in compliance with Section 38v (1) of Act No. 586/1992 Coll., on Income Taxes (the “ITA”).
Notification of Exempt Income Pursuant to Section 38v of the ITA
In order for a taxpayer to be obliged to file a notification of exempt income pursuant to Section 38v of the ITA, the following two conditions must be met:
The notification has to be filed with the competent tax administrator within a deadline for the tax return’s filing for a taxation period, in which the taxpayer received the income. If the taxpayer fails to file the notification, the tax administrator can impose a fine on the taxpayer for failing to notify exempt income up to the level of 15% of the amount of the income that failed to be notified (in compliance with Section 38w of the ITA).
The obligation to file the notification does not apply in the case that the tax administrator can derive the data from registers that are accessible to it and that are published on the official notice board and in a way enabling remote access.
What Was the Above-mentioned Judgment About?
The Plaintiff (as a natural person) acquired 12 participation certificates with a total value of CZK 15.7 million upon transfer. The transaction involved the Plaintiff’s free-of-charge income that was exempt from individual income tax in compliance with Section 10 (3) (c) (1) of the ITA. The participation certificates bore different identification numbers (ISIN), and the Plaintiff acquired them in a single day (based on a bank’s 12 orders) and from one person (her husband).
The Plaintiff concluded that she was not obliged to file a notification of exempt income because the value of none of the participation certificates exceeded the CZK 5 million threshold as she explained. However, the transaction’s value exceeded the threshold of CZK 5 million (cumulatively) in the tax administrator’s opinion and the tax administrator called the Plaintiff to file the notification. Subsequently, it imposed a fine on the Plaintiff (pursuant to Section 38w of the ITA) in the amount of 10% of the income that failed to be notified. The Plaintiff disagreed with the payment assessment and applied to the Regional Court.
As a result, the dispute’s substance was the interpretation of the term “income” provided in Section 38v (1) of the ITA that is not specified in detail in the law.
Decision of the Regional Court (the “RC”)
In the RC’s opinion, the term “income” is used in singular in the above-mentioned provision. Hence, individual items of income cannot be added up and have to be seen as independent and separate supplies. The RC also took into account the fact that the participation certificates involved did not constitute a set thereof (i.e. a collective item pursuant to Section 501 of Act No. 89/2012 Coll., the Civil Code) that would have been deliberately divided into several supplies by the Plaintiff in order to avoid the notification obligation.
According to the RC, the concerned case involved 12 independent items of income (investment instruments), for which the CZK 5 million threshold was not exceeded.
The appellate financial directorate disagreed with the RC’s conclusion and filed a cassation complaint with the SAC.
The SAC’s Statement
The SAC states that income needs to be considered from the perspective of the content thereof in interpreting Section 38v (1) of the ITA and refers to SAC’s Judgment No. 2 Afs 42/2005-136 that sees income as an increase in a taxpayer’s property. As a result, it is irrelevant to consider that 12 separate participation certificates were involved (the form) in the particular case in the SAC’s opinion because it is important to consider the received value (the content), and, as a result, the impact thereof on an increase in the taxpayer’s property (in the form of 12 participation certificates in the concerned case).
The SAC also considers the reasoning involving the participation certificates bearing different identification number irrelevant. Such identification is a public registration identification that cannot be referred to as an argument in the context of the considered matter in the SAC’s view.
Hence, the SAC disagreed with the RC’s conclusions. In the SAC’s opinion, the RC’s conclusion contradicts the notification obligation’s purpose pursuant to Section 38v of the ITA, which is, among others, enhanced transparency of property transactions and fight against tax evasions.
If this topic is relevant for you, please feel free to contact us. We will be happy to help you.
Stela Bartošová
bartosova@clarksonhyde.cz