ALASIPPOLA v. FINLAND
Inadmissible
Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
1. The applicant, Mrs Hanna Riikka Alasippola, is a Finnish national, who was born in 1972 and lives in Leppävesi. She was represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki. 2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was subject to a tax inspection during the years 2003 and 2004 due to an unexplained increase in her income. The tax inspection report was completed on 4 June 2004. At the same time the applicant’s husband was also subject to a tax inspection. He has lodged a separate application with the Court (no. 49509/12 Robert Alasippola v. Finland). 5. On 9 September 2004 the tax authorities imposed additional taxes and tax surcharges (veronkorotus, skatteförhöjning) on the applicant for the tax years 1999, 2000, 2001 and 2002. The amount of evaded taxes between 1999 and 2001 totalled approximately 55,290 euros. The amount of tax surcharges varied between 700 and 1,850 euros. 6. On an unspecified date the applicant sought rectification from the local Tax Rectification Committee (verotuksen oikaisulautakunta, prövningsnämnden i beskattningsärenden), requesting it to quash the decisions of 9 September 2004. Also the Tax Ombudsman (veroasiamies, skatteombudet) sought rectification in respect of the tax year 2001, requesting that the taxable income be increased. 7. On 17 September 2004 the Tax Rectification Committee reduced the amount of additional taxes as well as tax surcharges in respect of the tax year 2000. 8. On an unspecified date the Tax Rectification Committee accepted the Tax Ombudsman’s application and increased the taxable income for the tax year 2001. However, on 26 June 2006 the Hämeenlinna Administrative Court (hallinto-oikeus, förvaltningsdomstolen) quashed that decision. 9. On 11 December 2006 the Tax Rectification Committee rejected the applicant’s applications in respect of the tax years 1999, 2000, 2001 and 2002. 10. By letter dated 23 February 2007 the applicant appealed to the Hämeenlinna Administrative Court, requesting that the additional taxes and tax surcharges be quashed or at least reduced. 11. On 2 May 2008 the Hämeenlinna Administrative Court accepted the applicant’s appeal in respect of the tax year 2002 and quashed the additional tax and the tax surcharges in that respect. The remainder of the applicant’s appeal was rejected. This decision became final on 2 July 2008 as the applicant did not appeal against it. 12. On 27 March 2009 the public prosecutor brought charges against the applicant on one count of aiding and abetting aggravated dishonesty by a debtor (törkeä velallisen epärehellisyys, grovt oredlighet som gäldenär) and on two counts of aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri), all concerning the tax years 1999 to 2002. According to the charges, the applicant was accused of aiding and abetting aggravated dishonesty by a debtor as she had received unexplained income from her husband between 1999 and 2002. She was accused of aggravated tax fraud, inter alia, as she had given false information to the tax authorities and tax had therefore been incompletely levied between 1999 and 2001. The amount of evaded taxes had been 57,252 euros. The taxation authorities joined the charges and presented a compensation claim totalling exactly the amount of avoided taxes. 13. On 26 February 2010 the Keski-Suomi District Court (käräjäoikeus, tingsrätten) convicted the applicant of aiding and abetting aggravated dishonesty by a debtor and imposed a 9-month suspended sentence. The charges of aggravated tax fraud were dismissed, as well as the tax authorities’ compensation claim. 14. By letter dated 6 April 2010 the applicant appealed to the Vaasa Appeal Court (hovioikeus, hovrätten), requesting that the District Court’s judgment be quashed and the charge on aiding and abetting aggravated dishonesty by a debtor be rejected or dismissed without examining the merits. She referred to the ne bis in idem principle and to the Court’s caselaw in that respect. 15. On 31 October 2011 the Vaasa Appeal Court, after having held an oral hearing, upheld the District Court’s judgment. The court found that the mere fact that the same issues had been assessed in the administrative proceedings did not necessary prevent the examination of the charges pressed. In the administrative proceedings, the unexplained increase in the applicant’s wealth had been considered to be income, thus that case concerned only taxes. The criminal proceedings, however, concerned the fact that the applicant had received income from her husband to the detriment of his creditors. As the proceedings did not concern the same matter, there was no impediment to the examination of the charges. 16. By letter dated 22 December 2011 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court. She emphasised that the income received from her husband was exactly the same income for which additional taxes and tax surcharges had been imposed. All the imposed additional taxes and tax surcharges had been paid. 17. On 31 January 2012 the Supreme Court refused the applicant leave to appeal but granted the applicant’s husband leave to appeal. 18. Section 57, subsection 1, of the Tax Assessment Procedure Act (laki verotusmenettelystä, lagen om beskattningsförfarande, Act no. 1558/1995, as amended by Act no. 1079/2005) provides that if a person has failed to make the required tax returns or has given incomplete, misleading or false information to the tax authorities and tax has therefore been incompletely or partially levied, the taxpayer shall be ordered to pay unpaid taxes together with additional tax and a tax surcharge. 19. According to Chapter 29, sections 1 and 2, of the Penal Code (rikoslaki, strafflagen, as amended by Acts no. 1228/1997 and no. 769/1990), a person who (1) gives a tax authority false information on a fact that influences the assessment of tax, (2) files a tax return concealing a fact that influences the assessment of tax, (3) for the purpose of avoiding tax, fails to observe a duty pertaining to taxation, influencing the assessment of tax, or (4) acts otherwise fraudulently and thereby causes or attempts to cause a tax not to be assessed, or too low a tax to be assessed or a tax to be unduly refunded, shall be sentenced for tax fraud to a fine or to imprisonment for a period of up to two years. If by the tax fraud (1) considerable financial benefit is sought or (2) the offence is committed in a particularly methodical manner and the tax fraud is aggravated when assessed as a whole, the offender shall be sentenced for aggravated tax fraud to imprisonment for a period between four months and four years. 20. According to Chapter 39, sections 1 and 1a, of the Penal Code (as amended by Acts no. 61/2003 and no. 317/1994), a debtor who (1) destroys his or her property, (2) gives away or otherwise surrenders his or her property without acceptable reason, (3) transfers his or her property abroad in order to place it beyond the reach of his or her creditors or (4) increases his or her liabilities without basis and thus causes his or her insolvency or essentially worsens his or her state of insolvency, shall be sentenced for dishonesty by a debtor to a fine or to imprisonment for at most two years. If by the dishonesty by a debtor (1) considerable benefit is sought, (2) considerable or particularly substantial damage is caused to the creditors, or (3) the offence is committed in a particularly methodical manner and the dishonesty by a debtor is aggravated also when assessed as a whole, the offender shall be sentenced for aggravated dishonesty by a debtor to imprisonment for at least four months and at most four years. 21. The Supreme Court has taken a stand on the ne bis in idem principle in its precedent case KKO 2010:46 which concerned tax surcharges and aggravated tax fraud. In that case it found, inter alia, that even though a final judgment in a taxation case, in which tax surcharges had been imposed, prevented criminal charges being brought about the same matter, such preventive effect could not be applied to pending cases (lis pendens) crossing from administrative proceedings to criminal proceedings or vice versa. However, in July 2013 the Supreme Court reversed its line of interpretation, finding that charges for tax fraud could no longer be brought if there was already a decision to order or not to order tax surcharges in the same matter (KKO 2013:59). 22. The Act on Tax Surcharges and Customs Duty Surcharges Imposed by a Separate Decision (laki erillisellä päätöksellä määrättävästä veron- tai tullinkorotuksesta, lagen om skatteförhöjning och tullhöjning som påförs genom ett särskilt beslut, Act no. 781/2013) entered into force on 1 December 2013. According to the Act, the tax authorities can, when making a tax decision, assess whether to impose a tax surcharge or to report the matter to the police. The tax authorities can decide not to impose a tax surcharge. If they have not reported the matter to the police, a tax surcharge can be imposed by a separate decision by the end of the calendar year following the actual tax decision. If the tax authorities have imposed tax surcharges, they can no longer report the same matter to the police unless, after imposing the tax surcharges, they have received evidence of new or recently revealed facts. If the tax authorities have reported the matter to the police, tax surcharges can, as a rule, no longer be imposed. The purpose of the Act is thus to ensure that a tax or a customs duty matter is processed, and possibly punished, in only one set of proceedings. The Act does not, however, contain any transitional provisions extending its scope retroactively.