Decision of the Constitutional Court of 2 June 2010
On 2 June 2010, the Constitutional Court ruled that computation of the one-month period granted to the taxpayer to reply to a notice of rectification as from the date of handing over of the notice of rectification to the postal services violates the Constitution.
Indeed, Article 346, 3rd indent ITC 92, as applicable before 2 June 2010, implied that such a one-month period started to run before the taxpayer actually received the notice of rectification.
The Constitutional Court suggested that the starting point for the one-month period should be the third (working)[1]day after the notice of rectification has been handed over to the postal services.
In fact, the Constitutional Court applied to the one-month period provided for under Article 346, 3rd indent ITC 92 the so-called “receipt theory” that it had already applied in the past to compute the starting point of the period in which tax protests can be filed by taxpayers.
Impact on pending tax litigations
As a result of the Constitutional Court decision of 2 June 2010, the “receipt theory” is applicable as from 2 June 2010 to all the notices of rectification for which the one-month period has not expired yet on that date.
The Minister of Finance has recently confirmed that this computation method is also applicable to all pending administrative and judicial tax appeals. Some recent case-law also adheres to this position.
As a result it is possible to claim and obtain the annulment of the issued supplementary assessment on the basis of the decision of the Constitutional Court of 2 June 2010, in pending tax litigations, where the Tax Administration has issued the supplementary assessment before the end of the one-month period granted to the taxpayer to reply to a notice of rectification. In certain cases the Tax Administration will not have the right to issue a new assessment,
Please find enclosed a link to a more detailed note that includes among others some recommendations on how to make the best use of that case-law in pending tax litigations.
If you have any questions please do not hesitate to contact Angélique Puglisi (+32 2 501 94 82), Svjatoslav Gnedasj (+32 2 501 94 70) or your usual Linklaters contact.
[1] The wording of the decision of the Constitutional Court is not entirely clear as to whether or not it refers to three “working” days in accordance with Article 53bis of the Judicial Code or to any three days.
