Resolution of the Supreme Administrative Court (NSA) on limitation periods for tax liabilities suspended under COVID regulations

2023 / 03 / 29

On 27 March 2023 the Supreme Administrative Court composed of seven justices adopted an important resolution concerning applicability of COVID legislation to tax matters. The subject matter was suspension of the limitation period for tax liabilities under Art. 15zzr(1)(3) of the COVID-19 Act of 2 March 2020. These provisions, if interpreted unfavorably, could result in extension of the limitation period by 72 days. The NSA answered the question whether the disputable provisions were also applicable to the periods prescribed by the tax law.

Wording of the provisions

Art. 15zzr (1)(3) of the COVID-19 Act, which took effect on 31 March 2020, provided that, throughout the time of epidemic emergency and epidemics, announced due to COVID-19, the limitation periods defined in the administrative law would not start, and if started – would be suspended during this time.

Interpretation by tax authorities

The majority of tax authorities took a stance that this provision also applied to the tax law, including the Tax Code, and held that the tax law was part of the administrative law. In practice, the foregoing meant that the limitation period of a tax liability was extended by 72 days. For example, if a tax liability became barred at the end of 2021, the disputed provision, if applied, would mean that the limitation period would be extended until 14 March 2022. Therefore, the tax authorities would have more than two months longer to impose the tax. Administrative courts in some provinces accepted this approach.

Opinion expressed by the NSA

In view of the emerging doubts, the Supreme Administrative Court decided to submit the following question for resolution by seven justices of the Supreme Administrative Court:

Is the above provision also applicable to the starting date and suspension of limitation periods provided for in the tax law?

On 27 March 2023, 7 justices of the NSA adopted a resolution in case I FPS 2/22 and held that Art. 15zzr (1)(3) of the COVID-19 Act of 2 March 2020 did not apply to the starting date and suspension of limitation periods of tax liabilities.

The reasons provided verbally to support the resolution lead the following conclusions:

There are no sufficient grounds to consider that the scope of administrative law includes the tax law;
The views presented by the doctrine and the differences between the tax law and the administrative law confirm that they are not the same;
Including the tax law within the scope of administrative law is certainly not possible for the interpretation of the regulations subject to assessment (as such an interpretation would be of extending character, which is prohibited with respect to the tax law).

Effects of the resolution

The resolution should make the approach taken by courts in respect of this issue more uniform. The resolution should also be observed by the tax authorities. In many cases this means that the tax liabilities (to which the authorities applied the disputed Art. 15zzr) are barred and taxpayers can apply for a refund of overpaid tax.

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