Lietuviškai
Case No. 29/04
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
DECISION
ON THE PETITION OF THE STATE TAX INSPECTORATE UNDER THE
GOVERNMENT OF THE REPUBLIC OF LITHUANIA, THE PETITIONER,
REQUESTING TO CONSTRUE THE CONSTITUTIONAL COURT RULING "ON THE
COMPLIANCE OF PARAGRAPH 3 OF ARTICLE 39 (WORDING OF 26 JUNE
2001) OF THE REPUBLIC OF LITHUANIA LAW ON TAX ADMINISTRATION
AND PARAGRAPH 3 OF ARTICLE 18 (WORDING OF 19 FEBRUARY 1998) OF
THE REPUBLIC OF LITHUANIA LAW ON CUSTOMS TARIFFS WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA" OF 26 SEPTEMBER 2006
20 November 2006
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas
Sinkevičius, Stasys Stačiokas and Romualdas Kęstutis Urbaitis,
with the secretary of the hearing-Daiva Pitrėnaitė,
pursuant to Article 28 of the Law on the Constitutional
Court of the Republic of Lithuania, on 20 November 2006, at a
procedural sitting of the Constitutional Court considered the
petition of the State Tax Inspectorate under the Government of
the Republic of Lithuania, the petitioner, requesting to
construe the Constitutional Court of the Republic of Lithuania
Ruling "On the compliance of Paragraph 3 of Article 39 (wording
of 26 June 2001) of the Republic of Lithuania Law on Tax
Administration and Paragraph 3 of Article 18 (wording of 19
February 1998) of the Republic of Lithuania Law on Customs
Tariffs with the Constitution of the Republic of Lithuania" of
26 September 2006.
The Constitutional Court
has established:
I
1. On 26 September 2006, in constitutional justice case
No. 29/04 subsequent to the 19 May 2004 petition of the
Šiauliai Regional Administrative Court, the petitioner,
requesting to investigate whether Article 39 of the Republic of
Lithuania Law on Tax Administration, to the extent that it
establishes that the size of fine for unpaid or not duly paid
taxes and the procedure according to which the fine shall be
paid and calculated shall be established by the Minister of
Finance by taking into account the leveraged indicator of the
average fine rate of the last calendar quarter of the Republic
of Lithuania, paid on Government bonds issued for a term of one
year, in litas, as well as that the size of fine shall be
determined by increasing the average fine rate by up to 10
points, and Article 18 of the Republic of Lithuania Law on
Customs Tariffs, to the extent that it establishes that the
size of fine for unpaid or not duly paid duties shall be
established by the Minister of Finance by taking into account
the average annual fine rate payable the preceding calendar
quarter on Government bonds issued for a term not exceeding one
year, as well as that the Minister of Finance shall increase
the above rate but not more than by 10 points, are not in
conflict with Item 15 of Article 67 and Paragraph 3 of Article
127 of the Constitution of the Republic of Lithuania and with
the constitutional principle of a state under the rule of law,
the Constitutional Court adopted the Ruling "On the compliance
of Paragraph 3 of Article 39 (wording of 26 June 2001) of the
Republic of Lithuania Law on Tax Administration and Paragraph 3
of Article 18 (wording of 19 February 1998) of the Republic of
Lithuania Law on Customs Tariffs with the Constitution of the
Republic of Lithuania" (hereinafter also referred to as the
Constitutional Court ruling of 26 September 2006).
2. By the Constitutional Court ruling of 26 September 2006
it was inter alia recognised that Paragraph 3 of Article 39
(wording of 26 June 2001) of the Law on Tax Administration
- to the extent that it established that the size of fine
for unpaid or not duly paid taxes shall be established by the
Minister of Finance by taking into account the leveraged
indicator of the average fine rate of the last calendar quarter
of the Republic of Lithuania, paid on Government bonds issued
for a term of one year, in litas, was not in conflict with the
Constitution (Item 1 of the resolution part);
- to the extent that it entrenched the powers of the
Minister of Finance to decide, at his own discretion, but not
exceeding the established 10-point limit, by how many points to
increase this fine rate, was in conflict with Item 15 of
Article 67 and Paragraph 3 of Article 127 of the Constitution
and with the constitutional principle of a state under the rule
of law (Item 2 of the resolution part).
3. The State Tax Inspectorate under the Government of the
Republic of Lithuania (hereinafter also referred to as the
State Tax Inspectorate), the petitioner, requests the
Constitutional Court to construe the Constitutional Court
Ruling "On the compliance of Paragraph 3 of Article 39 (wording
of 26 June 2001) of the Republic of Lithuania Law on Tax
Administration and Paragraph 3 of Article 18 (wording of 19
February 1998) of the Republic of Lithuania Law on Customs
Tariffs with the Constitution of the Republic of Lithuania" of
26 September 2006 in the following aspects:
- whether the fine calculated under Paragraph 3 of Article
39 (wording of 26 June 2001) of the Law on Tax Administration
should be annulled altogether, or recalculated by applying a
different size; should the fine be recalculated by applying
another size, what size of the fine is to be applied for a
corresponding time period;
- until which date, 30 April 2004 or 30 April 2004
(including), the fine should be recalculated (or not
calculated).
4. This petition was received at the Constitutional Court
on 19 October 2006.
II
The State Tax Inspectorate, the petitioner, that submitted
the petition requesting to construe the Constitutional Court
ruling of 26 September 2006 substantiates it by the following
reasoning.
1. The Constitutional Court ruling of 26 September 2006
recognised that to some extent Paragraph 3 of Article 39
(wording of 26 June 2001) of the Law on Tax Administration was
in conflict, while to some other extent it was not in conflict
with the Constitution. Namely, this paragraph was recognised to
be in conflict with the Constitution to the extent that it
entrenched the powers of the Minister of Finance to decide, at
his own discretion, but not exceeding the established 10-point
limit, by how many points to increase the fine rate specified
in this paragraph, while it was recognised to be not in
conflict with the Constitution to the extent that it
established that the size of fine for unpaid or not duly paid
taxes shall be established by the Minister of Finance by taking
into account the leveraged indicator of the average fine rate
of the last calendar quarter of the Republic of Lithuania, paid
on Government bonds issued for a term of one year, in litas.
It is not clear to the State Tax Inspectorate, the
petitioner, which submitted the petition requesting to construe
the Constitutional Court ruling of 26 September 2006, whether
in the course of execution of the Constitutional Court ruling
of 26 September 2006 the fine calculated under Paragraph 3 of
Article 39 (wording of 26 June 2001) of the Law on Tax
Administration should be annulled altogether, or recalculated
by applying a different size.
It is also noted in the petition that the State Tax
Inspectorate does not have any powers to establish the size of
the fine. Therefore, it is not clear to the State Tax
Inspectorate, the petitioner, which submitted the petition
requesting to construe the Constitutional Court ruling of 26
September 2006, what size of the fine "for this time period"
should be applied, if the fine is recalculated by applying a
different size.
2. The Minister of Finance established the size of the
fine for the second quarter of 2004 by invoking Paragraph 3 of
Article 39 (wording of 26 June 2001) of the Law on Tax
Administration, which, according to the State Tax Inspectorate,
the petitioner, which submitted the petition requesting to
construe the Constitutional Court ruling of 26 September 2006,
was in force till (and including) 30 June 2004. Meanwhile,
Paragraph 3 of Article 39 (wording of 26 June 2001) of the Law
on Tax Administration under which the Minister of Finance
decided, at his own discretion, but not exceeding the
established 10-point limit, by how many points to increase the
fine rate, was in force till (and including) 30 April 2004. In
the opinion of the State Tax Inspectorate, the petitioner,
which submitted the petition requesting to construe the
Constitutional Court ruling of 26 September 2006, in the course
of execution of the Constitutional Court ruling of 26 September
2006, the fine should be recalculated (or not calculated) for
the period till (and including) 30 June 2004, however, it still
inquires as to until which date, 30 April 2004 or 30 June 2004
(including), the fine should be recalculated (or not
calculated).
The Constitutional Court
holds that:
1. Article 61 of the Law on the Constitutional Court
consolidates the Constitutional Court powers to officially
construe its rulings.
1.1. While construing Article 61 of the Law on the
Constitutional Court, the Constitutional Court has held that
the Constitutional Court has powers also to officially construe
its other final acts, inter alia conclusions (Constitutional
Court decision of 6 April 2004).
1.2. The Constitutional Court officially construes its
ruling at the request of the parties to the case, of other
institutions or persons to whom it was sent, or on its own
initiative (Paragraph 1 of Article 61 of the Law on the
Constitutional Court).
1.3. A Constitutional Court ruling, within 2 days of its
adoption, shall be sent to the justices of the Constitutional
Court, the parties to the case, the Seimas, the President of
the Republic, the Government, the President of the Supreme
Court, the Prosecutor General, and the Minister of Justice
(Paragraph 1 of Article 61 of the Law on the Constitutional
Court). The President of the Constitutional Court may order
that a Constitutional Court ruling be sent to other
institutions, officials, or citizens (Paragraph 2 of Article 61
of the Law on the Constitutional Court).
1.4. The first paragraph of Item 14 of Section 1 of
Chapter VI of the Rules of the Constitutional Court provides
that a Constitutional Court ruling is construed upon request of
the entities specified in Paragraph 1 of Article 60 of the Law
on the Constitutional Court, as well as upon the initiative of
the Constitutional Court. The second paragraph of the same item
provides that a Constitutional Court ruling is also construed
upon request of the entities to which the Constitutional Court
ruling was sent and where it is indicated that this is done
according to Paragraph 2 of Article 60 of the Law on the
Constitutional Court; the instruction to send the ruling
according to Paragraph 2 of Article 60 of the Law on the
Constitutional Court is given by the President of the
Constitutional Court by issuing an order. The Constitutional
Court does not construe its rulings upon requests of other
entities (the third paragraph of Item 14 of Section 1 of
Chapter VI of the Rules of the Constitutional Court).
2. Upon instruction of the President of the Constitutional
Court, the Constitutional Court ruling of 26 September 2006 was
sent inter alia to the State Tax Inspectorate under the
Government of the Republic of Lithuania.
3. The State Tax Inspectorate requests the Constitutional
Court to construe the Constitutional Court ruling of 26
September 2006 in the following aspects:
- whether the fine calculated under Paragraph 3 of Article
39 (wording of 26 June 2001) of the Law on Tax Administration
should be annulled altogether, or recalculated by applying a
different size; should the fine be recalculated by applying
another size, what size of the fine is to be applied for a
corresponding time period;
- until which date, 30 April 2004 or 30 April 2004
(including), the fine should be recalculated (or not
calculated).
4. It needs to be held that the petition of the State Tax
Inspectorate, the petitioner, requesting to construe the
Constitutional Court ruling of 26 September 2006 (the petition
to construe this Constitutional Court ruling in the aspects
specified by the State Tax Inspectorate, the petitioner, which
submitted this petition) is a petition requesting to construe
inter alia the provisions of Paragraph 3 of Article 39 (wording
of 26 June 2001) of the Law on Tax Administration (wording of
28 June 1995 with subsequent amendments and supplements made
till 1 May 2004 after the Republic of Lithuania Law on Tax
Administration was adopted , which was adopted by the Seimas on
13 April 2004, by Article 170 whereof the Law on Tax
Administration that had been valid until then was recognised as
no longer valid) which were recognised by the said
Constitutional Court ruling as being not in conflict with the
Constitution.
5. In its acts the Constitutional Court has held more than
once that under the Constitution and the Law on the
Constitutional Court the Constitutional Court does not decide
issues of application of law, also, that such issues are
decided by the institution that enjoys powers to apply legal
acts. If the laws contain obscurities, ambiguities, and gaps,
it is the duty of the legislature to eliminate them
(Constitutional Court decision of 23 September 2002). The
Constitutional Court has also held that the questions of
application of law which have not been decided by the
legislator are the matter of judicial practice (Constitutional
Court ruling of 9 July 1998). This doctrinal provision of the
Constitutional Court ruling of 9 July 1998 means that the
questions of application of law which have not been decided by
the legislator may be decided by courts, when they consider
disputes regarding the application of corresponding legal acts
(parts thereof).
The petitions requesting to construe as to how the
provisions of a law (other legal acts) are to be applied are
not within the jurisdiction of the Constitutional Court
(Constitutional Court decision of 23 September 2002).
6. Under Item 2 of Paragraph 1 of Article 69 of the Law on
the Constitutional Court, by a decision, the Constitutional
Court shall refuse to consider petitions to investigate the
compliance of a legal act with the Constitution, if the
consideration of the petition does not fall under the
jurisdiction of the Constitutional Court.
It needs to be held that this provision is applicable
mutatis mutandis also to the petitions, provided for in Article
61 of the Law of the Constitutional Court, requesting to
construe Constitutional Court acts.
7. Taking account of the arguments set forth, the petition
of the State Tax Inspectorate, the petitioner, requesting to
construe the Constitutional Court ruling of 26 September 2006
(the petition to construe this Constitutional Court ruling in
the aspects specified by the State Tax Inspectorate, the
petitioner, which submitted this petition) is not within the
jurisdiction of the Constitutional Court and one is to refuse
to construe the said Constitutional Court ruling subsequent to
this petition.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles of the Law on the
Constitutional Court of the Republic of Lithuania, the
Constitutional Court of the Republic of Lithuania has adopted
the following
decision:
To refuse to construe the Constitutional Court of the
Republic of Lithuania Ruling "On the compliance of Paragraph 3
of Article 39 (wording of 26 June 2001) of the Republic of
Lithuania Law on Tax Administration and Paragraph 3 of Article
18 (wording of 19 February 1998) of the Republic of Lithuania
Law on Customs Tariffs with the Constitution of the Republic of
Lithuania" of 26 September 2006 subsequent to the petition of
the State Tax Inspectorate under the Government of the Republic
of Lithuania, the petitioner, which submitted the petition
requesting to construe this Constitutional Court ruling, in the
following aspects:
- whether the fine calculated under Paragraph 3 of Article
39 (wording of 26 June 2001) of the Republic of Lithuania Law
on Tax Administration should be annulled altogether, or
recalculated by applying a different size; should the fine be
recalculated by applying another size, what size of the fine is
to be applied for a corresponding time period;
- until which date, 30 April 2004 or 30 April 2004
(including), the fine should be recalculated (or not
calculated).
This Constitutional Court decision is final and not
subject to appeal.
The decision is announced in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis Urbaitis