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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of April 4, 2024 No. 10

About exceptional case of illegality of some provisions of Articles 2264, 2266 h (62) and 264 Tax codes (the term of limitation period for determination of the tax liabilities) (the address No. 169g/2022 of)

Name of the Republic of Moldova

Constitutional court in structure:

Liouba Shova presiding

Viorika Puyka,

Nicolae Roshka,

Sergey Tsurkan,

Vladimir Tsurkan, judges,

with the assistance of the assistant judge Dumitra Avornik,

in view of the address,

registered on October 28, 2022,

having considered this address in open plenary meeting,

considering acts and case papers,

having carried out discussion in the consultative room on April 4, 2024,

issues the following decree.

PROCEDURE QUESTIONS

1. The address about exceptional case of illegality formed the basis for consideration of the case:

- syntagmas "since January 1, 2012" in Article 2264;

- the provisions "only if the taxpayer produces the evidence, confirmatory that from source of the income of the loan amount the corresponding tax liabilities before the national public budget are extinguished and/or that the loan amount represents the income, not taxable according to Article 20" in Article 2266 of h (62) and

- syntagmas "except as specified, provided by part (2)" in the h. (1) Article 264 and provisions of h (2) same article of the Tax Code,

declared by the lawyer Aureliu Skortsesku for the benefit of Gennady Mure in the matter of No. 3-1313/2021, being in production the vessels Chisinau.

2. The appeal about exceptional case of illegality was sent in the Constitutional court by the judge in court of Chisinau Tatyana Avasiloaye according to the procedure of Article 135 of h (1) the item and) and the item g) Constitutions.

3. During consideration of the address the Constitutional court requested opinions of the Government, Parliament, the President of the Republic of Moldova and the State Tax Administration.

4. At open session of the Constitutional court there were lawyer Aureliu Skortsesku, the representative of the author of the address Gennady Mure, the representative of Parliament Valeriu Kuchuk, and the head of department No. 2 of head department of legal examination of the State Tax Administration Rada David as the representative of the Government.

ACTUAL CIRCUMSTANCES

I. Circumstances of the main dispute

5. The head department on tax administration of municipium of Chisinau took out on December 30, 2020 the act in which determined that Gennady Mure during 2012-2019 broke number of provisions of the tax legislation concerning declaring of the income tax. Gennady Mure did not agree with this act.

6. The head department of tax administration passed on March 1, 2021 the decision on variation of objection of Gennady Mure and disposed to collect from it the estimated taxes, penalty fee for unpaid amount and the inflicted sanctions. Gennady Mure appealed this decision in court of Chisinau.

7. At the same time on August 4, 2021 the prosecutor of Prosecutor's office on fight against organized crime and special cases brought to Gennady Mure tax evasion charge of especially large sizes.

8. During judicial session of October 12, 2022 on consideration of the claim to the decision of tax authority the lawyer Aureliu Skortsesku declared exceptional case of illegality of the provisions stated above in § 1.

9. The court of Chisinau satisfied with determination of October 18, 2022 the petition and sent the appeal about exceptional case of illegality to the Constitutional court for its permission.

II. Applicable legislation

10. Applicable provisions of the Constitution:

Article 1

State Republic of Moldova

"[…]

(3) the Republic of Moldova - the democratic constitutional state in which advantage of the person, its rights and freedom, free development of the human person, justice and political pluralism are the supreme values and are guaranteed".

Article 20

Open entry to justice

"(1) Any person has the right to effective recovery in the rights by competent courts in case of violation of its rights, freedoms and legitimate interests.

(2) Any law cannot limit access to justice".

Article 21

Presumption of innocence

"Any person accused of crime execution is considered innocent until his guilt is not established by legal order by public legal proceedings in case of which all necessary guarantees for protection are provided to it".

Article 23

Right of each person to knowledge of the rights

and obligations

"(1) Each person has the right to recognition of its legal personality.

(2) the State provides the right of each person to knowledge of the rights and obligations. For this purpose the state publishes all laws and other regulations and provides their availability".

Article 46

Right of private property and its protection

"(1) the Right of private property, and also the debt obligations undertaken by the state are guaranteed.

(2) Nobody can be deprived of the property differently as in case of the social necessity established by the law on condition of fair and preliminary compensation.

(3) Legally got property cannot be seized. Legality got is meant.

(4) the Property intended, used for making of crimes or offenses or got as a result of making of crimes or offenses can be confiscated only according to the law.

(The Right of private property obliges 5) to observance of requirements of environment protection and ensuring neighborliness, and also to observance of other requirements which according to the law are assigned to the owner.

(6) the Inheritance right of private property is guaranteed".

11. Applicable provisions of the Tax code accepted by the Law No. 1163 of April 24, 1997:

Article 2264

Assessment objects indirect methods

"Assessment objects indirect methods is any income gained by subjects of assessment since January 1, 2012".

Article 2266

Indirect methods of assessment

"[…]

(62) the Estimated taxable income decreases by the amount taken as loan by the checked taxpayer, only if the taxpayer produces the evidence, confirmatory that from source of the income of the loan amount the corresponding tax liabilities before the national public budget are extinguished and/or that the loan amount represents the income, not taxable according to Article 20.

[…]".

Article 264

Prescriptive limit for determination

tax liabilities

"(1) Except as specified, provided by part (2), the tax liabilities can be determined by the taxpayer and the State Tax Administration or other bodies performing powers on tax administration in the following terms:

a) for taxes (duties), charges, penalty fee – no later than four years from the last date established for submission of the corresponding tax report or for the tax discharge (duty), collection, penalty fee (in case submission of the tax report is not provided);

b) for the tax sanctions relating to specific tax (duty), collection, – no later than four years from the last date established for submission of the tax report on this tax (duty), collection or for payment of this tax (duty), collection (in case submission of the tax report is not provided);

c) for the tax sanctions which are not relating to specific taxes (duties), charges – no later than four years from the date of making of tax offense.

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