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On returning a petition

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON RETURNING THE PETITION OF THE VILNIUS REGIONAL ADMINISTRATIVE COURT, THE PETITIONER, REQUESTING AN INVESTIGATION INTO WHETHER THE PROVISION “THE PROVISIONS OF ARTICLES 1 <…> OF THIS LAW SHALL BE APPLICABLE IN THE COURSE OF THE CALCULATION OF THE TAXABLE PROFIT FOR THE YEAR 2000 AND SUBSEQUENT YEARS” OF PARAGRAPH 2 OF ARTICLE 12 OF THE REPUBLIC OF LITHUANIA’S LAW ON TAXES ON PROFITS OF LEGAL PERSONS IS NOT IN CONFLICT WITH PARAGRAPH 2 OF ARTICLE 7 OF THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND WITH THE PRINCIPLES OF JUSTICE AND A STATE UNDER THE RULE OF LAW CONSOLIDATED IN THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA BACK TO THE PETITIONER

 

31 March 2005

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Augustinas Normantas, Vytautas Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, in its procedural sitting, has considered the petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether the provision “the provisions of Articles 1 <…> of this Law shall be applicable in the course of the calculation of the taxable profit for the year 2000 and subsequent years” of Paragraph 2 of Article 12 of the Republic of Lithuania’s Law on Taxes on Profits of Legal Persons is not in conflict with Paragraph 2 of Article 7 of the Constitution of the Republic of Lithuania and the principles of justice and a state under the rule of law consolidated in the Constitution.

The Constitutional Court

has established:

The Vilnius Regional Administrative Court, the petitioner, considered an administrative case. On 4 March 2005, the said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether the provision “the provisions of Articles 1 <…> of this Law shall be applicable in the course of the calculation of the taxable profit for the year 2000 and subsequent years” of Paragraph 2 of Article 12 of the Law on Taxes on Profits of Legal Persons is not in conflict with Paragraph 2 of Article 7 of the Constitution and the principles of justice and a state under the rule of law consolidated in the Constitution.

The petitioner points out that the impugned wording of the provision of Paragraph 2 of Article 12 of the Law on Taxes on Profits of Legal Persons was established by law No. VIII-1818, which was adopted by the Seimas on 11 July 2000 and went into effect on 31 July 2000.

The Constitutional Court

holds that:

1. The Law on the Constitutional Court of the Republic of Lithuania provides for general requirements, concerning the content, form and attachments, of petitions presented to the Constitutional Court, requesting an investigation into the compliance of legal acts with the Constitution (Article 66 of the Law on the Constitutional Court), and special requirements concerning rulings of the Supreme Court of Lithuania, the Court of Appeal of Lithuania, of regional, and local courts by which one applies to the Constitutional Court (Article 67 of the Law on the Constitutional Court). The said requirements are concretised in Section 1 of Chapter VI of the Rules of the Constitutional Court.

It needs to be noted that, under Item 6 of Paragraph 1 of Article 66 of the Law on the Constitutional Court, a petition for an investigation into the compliance of a legal act with the Constitution must contain the precise title of the impugned legal act, its number, the date of its adoption, and other data which are necessary for the identification thereof, as well as the source of its publication (if it was published). Under Item 8 of the same paragraph, a petition for an investigation into the compliance of a legal act with the Constitution must contain the position of the petitioner concerning the compliance of an appropriate act with the Constitution and legal support of such a position containing references to laws. Under Item 6 of Paragraph 2 of Article 67 of the Law on the Constitutional Court, the court ruling must contain a formulated petition of the court to the Constitutional Court. Under Item 15 of Section 1 of Chapter VI of the Rules of the Constitutional Court, a duplicate of the whole text of the impugned legal act (part thereof) is attached to the petition requesting an investigation into whether laws are not in conflict with the Constitution; the text of the legal act which is published in the official gazette “Valstybės žinios” is considered such a duplicate.

The general requirements concerning the content, form and annexes, of petitions presented to the Constitutional Court, requesting an investigation into the compliance of legal acts with the Constitution and the special requirements concerning rulings of courts by which one applies to the Constitutional Court, which are established in the Law on the Constitutional Court and the Rules of the Constitutional Court, are also applicable to the rulings of specialised courts, which are provided for in Paragraph 2 of Article 111 of the Constitution, by which one applies to the Constitutional Court.

2. The Vilnius Regional Administrative Court, the petitioner, points out in the operative part of the petition, by which it is applying to the Constitutional Court, that the Constitutional Court is requested to investigate whether a provision of Paragraph 2 of Article 12 of the Law on Taxes on Profits of Legal Persons is not in conflict with Paragraph 2 of Article 7 of the Constitution and the principles of justice and a state under the rule of law consolidated in the Constitution.

It needs to be noted that in the operative art of the ruling the impugned provision is neither cited nor identified otherwise.

It is clear from the arguments of the petition that the provision the compliance of which with the Constitution is doubtful to the petitioner is set forth as follows: “the provisions of Articles 1 <…> of this Law shall be applicable in the course of the calculation of the taxable profit for the year 2000 and subsequent years”.

By specifying it, the petitioner indicates that the impugned wording of the provision of Paragraph 2 of Article 12 of the Law on Taxes on Profits of Legal Persons was established by law No. VIII-1818, which was adopted by the Seimas on 11 July 2000, and which went into effect on 31 July 2000.

3. On 31 July 1990, the Seimas adopted the Law on Taxes on Profits of Legal Persons. The articles (parts thereof) of the said law have been amended and/or supplemented more than once.

Article 12 (parts thereof) of the Law on Taxes on Profits of Legal Persons that was pointed out by the petitioner was amended and/or supplemented by the Republic of Lithuania’s Law “On Supplementing Article 12 of the Republic of Lithuania Law on Taxes on Profits of Legal Persons” of 9 December 1993 (whereby Paragraph 1 of Article 12 of the Law on Taxes on Profits of Legal Persons was supplemented), by Article 2 of the Republic of Lithuania’s Law “On Amending and Supplementing the Republic of Lithuania Law on Taxes on Profits of Legal Persons” of 17 February 1994 (whereby Paragraph 1 of Article 12 of the Law on Taxes on Profits of Legal Persons was amended), by Article 11 of the Republic of Lithuania’s Law on Amending Articles 1, 2, 3, 4, 41, 5, 6, 7, 8, 11, 12, 13, 14, 15 of the Law on Taxes on Profits of Legal Persons and Supplementing Thereof with Articles 21 and 22 of 2 July 1998 (whereby entire Article 12 of the Law on Taxes on Profits of Legal Persons was amended and set forth in a new wording), and by Article 9 of the Republic of Lithuania’s Law on Amending Articles 1, 2, 3, 5, 7, 8, 9, 11, 12, 21, and 22 of the Law on Taxes on Profits of Legal Persons of 10 July 2001 (whereby Paragraphs 3 and 4 of Article 12 of the Law on Taxes on Profits of Legal Persons were amended).

By Item 1 of Article 60 of the Republic of Lithuania’s Law on Income Tax of 20 December 2001, the Law on Taxes on Profits of Legal Persons was recognised as not valid as of 1 January 2003.

4. According to the petitioner, the impugned wording of the provision of Paragraph 2 of Article 12 of the Law on Taxes on Profits of Legal Persons was established by law No. VIII-1818, which was adopted by the Seimas on 11 July 2000, and which went into effect on 31 July 2000.

Law No. VIII-1818, which was adopted by the Seimas on 11 July 2000, which went into effect on 31 July 2000, and which is indicated by the petitioner is the Republic of Lithuania’s Law on Amending and Supplementing Articles 1, 2, 3, 4, 5, 6, 7, 11, 14, 20, and 21 of the Law on Taxes on Profits of Legal Persons (Official Gazette Valstybės žinios, No. 64-1912) which is actually mentioned by the petitioner. It is the text of this law (published in the official gazette “Valstybės žinios”) the copy of which has been attached to the petition of the petitioner.

By the Law on Amending and Supplementing Articles 1, 2, 3, 4, 5, 6, 7, 11, 14, 20, and 21 of the Law on Taxes on Profits of Legal Persons, individual articles (parts thereof) of the Law on Taxes on Profits of Legal Persons were amended and/or supplemented, however, Paragraph 2 (which was set forth in its wording of 2 July 1998 then) of Article 12 of the Law on Taxes on Profits of Legal Persons was not amended nor supplemented.

The provision “the provisions of Articles 1 <…> of this Law shall be applicable in the course of the calculation of the taxable profit for the year 2000 and subsequent years” is set forth not in Paragraph 2 (of a certain wording) of Article 12 of the Law on Taxes on Profits of Legal Persons, but in Paragraph 2 of Article 12 of the Law on Amending and Supplementing Articles 1, 2, 3, 4, 5, 6, 7, 11, 14, 20, and 21 of the Law on Taxes on Profits of Legal Persons, which provides:

The provisions of Articles 1, 3, 4, 5, 6, 9, 10, and 11 of this Law shall be applicable in the course of the calculation of the taxable profit for the year 2000 and subsequent years. If the established taxable period does not coincide with the taxable year, the provisions of Articles 1, 3, 4, 5, 6, 9, 10, and 11 of this Law shall be applicable in the course of the calculation of the taxable profit of the taxable period that began in the year 2000 and of subsequent periods.”

Paragraph 2 of Article 12 of the Law on Amending and Supplementing Articles 1, 2, 3, 4, 5, 6, 7, 11, 14, 20, and 21 of the Law on Taxes on Profits of Legal Persons has not been amended nor supplemented.

5. Thus, although the petitioner formulates its petition to the Constitutional Court as the petition requesting an investigation into whether the provision of Paragraph 2 of Article 12 of the Law on Taxes on Profits of Legal Persons, which is indicated by it, is not in conflict with Paragraph 2 of Article 7 of the Constitution and the principles of justice and a state under the rule of law consolidated in the Constitution, it should be held that the petitioner actually doubts whether Paragraph 2 of Article 12 of another law, i.e. the Law on Amending and Supplementing Articles 1, 2, 3, 4, 5, 6, 7, 11, 14, 20, and 21 of the Law on Taxes on Profits of Legal Persons, is not in conflict with Paragraph 2 of Article 7 of the Constitution and the principles of justice and a state under the rule of law consolidated in the Constitution.

Thus, the petition (operative part thereof) of the petitioner erroneously indicates the title of the legal act the compliance of which with the Constitution is impugned.

6. As mentioned before, under Item 6 of Paragraph 1 of Article 66 of the Law on the Constitutional Court, a petition for the investigation of the compliance of a legal act with the Constitution must contain, inter alia, the precise title of the impugned legal act. If the precise title of the impugned legal act is not indicated, it should be judged that the petition does not meet the requirements of Article 66 of the Law on the Constitutional Court.

Under Article 70 of the Law on the Constitutional Court, in the case that a petition or attachments thereto fail to comply with the requirements set forth in Articles 66 and 67 of this law, the petition is returned to the petitioner. The return of a petition does not take away the right to apply to the Constitutional Court according to the common procedure after removal of the deficiencies thereof.

Conforming to Article 102 of the Constitution of the Republic of Lithuania, Article 1, Paragraph 2 of Article 25, Articles 28 and 70 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

To return the petition requesting an investigation into whether the provision “the provisions of Articles 1 <…> of this Law shall be applicable in the course of the calculation of the taxable profit for the year 2000 and subsequent years” of Paragraph 2 of Article 12 of the Republic of Lithuania’s Law on Taxes on Profits of Legal Persons is not in conflict with Paragraph 2 of Article 7 of the Constitution of the Republic of Lithuania and the principles of justice and a state under the rule of law consolidated in the Constitution of the Republic of Lithuania back to the petitioner.

Justices of the Constitutional Court:          Armanas Abramavičius

                                                                                            Egidijus Kūris

                                                                                            Kęstutis Lapinskas

                                                                                            Zenonas Namavičius

                                                                                            Augustinas Normantas

                                                                                            Vytautas Sinkevičius

                                                                                            Stasys Stačiokas

                                                                                            Romualdas Kęstutis Urbaitis