Name of the Republic of Moldova
of February 13, 2014 No. 7
About control of constitutionality of part (7) article 88 of the Tax Code No. 1163-XIII of April 24, 1997 (The address No. 5a/2014 of)
Constitutional court in structure:
To Alexander Tenase, chairman,
Auryl to Beesh,
Petra Reiljan, judges,
with the assistance of the secretary of meeting, Serdzhiu Stratan,
in view of the address provided and registered on February 3, 2014
having considered the specified address in open plenary meeting,
considering acts and case papers,
having held meeting behind closed doors,
issues the following decree:
Points of order
1. The address of deputies of Parliament of Mihai Ghimpu, to Valeriu Muntyan, George Brega and Corinna Fusu brought into the Constitutional court on February 3, 2014 according to provisions of Art. 135 of the h formed the basis for consideration of the case. (1) item a) Constitutions, Art. 25 of the item g) Law on the Constitutional court and Art. 38 of the h. (1) the item g) the Code of the constitutional jurisdiction, about control of constitutionality of item 34 of the Art. IX of the Law No. 324 of December 23, 2013 on modification and amendments in some legal acts to which Art. 88 of the Tax code it is supplemented with part (7).
2. Authors of the address consider, in particular, that part provisions (7) Art. 88 of the Tax code in the editions of the Law No. 324 of December 23, 2013 providing the right of physical persons to dispose about the direction of the amount within 2% of the income tax amount calculated to payment in the budget from the salary for support of non-profit organizations of public advantage and religious institutions 130 and 131 Constitutions, and also to provisions of the international acts contradict Articles 6, of 7, of 8, of 72, of 74, of 109,.
3. Determination of the Constitutional court of February 4, 2014, without decision in essence, the address was acknowledged acceptable. At the same time the petition for suspension of action of the challenged provisions for benefit of consideration of the address quickly was rejected.
4. During consideration of the address, the Constitutional court requested written opinions of Parliament, Government, the President of the Republic of Moldova, National council on participation and the commercial organization Business Consulting Institute.
5. In open plenary meeting of the Constitutional court the address was reasoned by the author of the address, the deputy of Parliament to Valeriu Muntyan. The parliament was represented by the deputy Valeriu Giletski and the main consultant of general legal management of the Secretariat of Parliament Serdzhiu Kirike. The government the deputy minister of justice represented Nicolae Eshana.
6. December 23, 2013. The parliament adopted the Law No. 324 on modification and amendments in some legal acts providing new budget tax policy for 2014. This law provides amendments, including to the Tax code.
7. The amendments to the Tax code which are subject to constitutionality control establish the right of physical persons to dispose about the direction of the amount within 2% from the income tax amount calculated to payment in the budget from the salary for support of non-profit organizations of public advantage and religious institutions.
8. The project of budget tax policy was approved by the Order of the Government No. 959 of December 3, 2013 and was registered by the same number in Parliament at No. 491.
9. Amendments to the Tax code about the direction of the amount within 2% from the income tax amount from the salary did not contain in the bill approved by the Government. These provisions were included by Parliament in case of adoption of the bill in final reading (on December 23, 2013) according to the offer of the Commission on economy, the budget and finance (according to the report on the project in the second reading No. CEB No. 6/755 of December 23, 2013).
10. Also concerning the offered amendments which concern directly budget tax policy of the state, the consent of the Government according to Art. 131 of the h was not requested. (4) Constitutions. Need of request of consent of the Government was established after adoption of the bill.
11. Thus, upon the demand of the Chairman of the parliament the letter No. DDP/C-6/243 of December 24, 2013. The government accepted post factum the Resolution No. 1051 of December 24, 2013. About the bill on the government budget for 2014. In the resolution the following is noted:
Considering approval by Parliament on December 23, 2013 of the bill on modification and amendments in some legal acts (No. 491 of December 3, 2013 about budget tax policy for 2014) and, afterwards, the bill on the government budget for 2014 (No. 488 of December 3, 2013), with the made changes, approves increase in the income and expenses of the government budget for 2014 from 25 682 041,6 of one thousand lei and 28 085 074,8 of one thousand lei to 25 814 830,3 of one thousand lei and, respectively, 28 217 863,5 of one thousand lei."
12. The law No. 324 on modification and amendments in some legal acts was published in Monitorul Oficial al Republicii Moldova on December 31, 2013 and became effective on January 1, 2014.
13. Applicable provisions of the Constitution (M.O., 1994, No. 1):
Article 23. Right of each person to knowledge of the rights and obligations
(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 96. Role [Governments]
(1) the Government provides carrying out domestic and foreign policy of the state and performs the common directorship of public management.
Article 109. Basic principles of local public authority
(1) Public management in administrative and territorial units is based on the principles of local autonomy, decentralization of public services, selectivity of the authorities of local public authority and consultations with citizens on the most important questions of local value.
(2) Autonomy concerns as the organization and activities of local public authority, and disposal of the represented communities.
Article 130. Financial credit system
(1) Forming, management, use and control of financial resources of the state, administrative and territorial units and public organizations are regulated by the law.
Article 131. National public budget
(1) the National public budget consists of the government budget, the budget of the national social insurance and budgets of areas, the cities and villages.
(4) Any legislative offer or the amendment involving increase or reducing budget incomes or loans, and also increase or reducing budgeted expenses can be accepted only after their approval by the Government.
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