GUNEY v. SWEDEN
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
The applicant, Mr Musa Güney, is a Swedish citizen who was born in 1960. He was represented before the Court by Mr R. Armholt, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Mr C.-H. Ehrenkrona, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The Tax Authority made a tax audit of a restaurant business, owned by a holding company owned, in its turn, by the applicant and three other persons. Following the audit the Tax Authority, by decisions of 8 December 2004, raised the company’s turnover by 2.7 million Swedish kronor (SEK) and considered that SEK 1.9 million of that amount had been paid to the company owners during the tax assessment years 2002 and 2003. Consequently, by the same decisions, the applicant’s taxable income for both years was raised by SEK 236,581. Moreover, as the revised taxation involved a discretionary assessment due to allegedly undisclosed salary payments in the applicant’s tax returns, tax surcharges (skattetillägg) were imposed on him, amounting to SEK 30,078 and 25,886, respectively, for the two assessment years (in total approximately 6,000 euros (EUR)). The applicant appealed to the County Administrative Court (länsrätten) of the County of Stockholm through his legal counsel. On 14 March 2005 the Tax Authority reconsidered its decisions but did not change them. On 31 August 2005 the applicant applied to the County Administrative Court for legal aid. Referring to Article 6 § 3 (c) of the Convention, he maintained that he had no financial means to pay for legal representation as he had not been granted a respite to pay the tax amounts, that the legal issues were not uncomplicated as statistical information concerning the Swedish restaurant business had been used in determining the revised taxes and that the tax surcharges imposed on him were considerable. He further stated that, being of foreign origin, he did not fully master the Swedish language. On 8 September 2005 the court refused the applicant legal aid. It noted that, under the terms of the Legal Aid Act (Rättshjälpslagen, 1996:1619), the scope for granting legal aid to a businessman in a taxation case was very limited. According to a leading decision by the Supreme Administrative Court (Regeringsrätten), the application of Article 6 § 3 (c) in a case concerning tax surcharges would depend on the size of the surcharges and the nature of the case; only if the penalties were particularly heavy and the legal issues complicated could legal aid be granted by virtue of the Convention (RÅ 2003 ref. 56). The instant case concerned mainly the question whether the documentation obtained by the Tax Authority constituted a sufficient ground for increasing the first applicant’s liability to income tax. The court found that, although the documentation was relatively extensive, the legal issues, including those related to the subordinate questions concerning the tax surcharges, were not of such a character that the applicant had a right to legal aid under Swedish law or the Convention. On 18 October 2005 the Administrative Court of Appeal (kammarrätten) in Stockholm rejected the applicant’s appeal, subscribing to the reasons given by the County Administrative Court. On 5 April 2006 the Supreme Administrative Court refused leave to appeal. By a judgment of 3 January 2007, the County Administrative Court reduced the company’s unrecorded revenues and salary payments. Accordingly, in a further judgment of 16 March 2007 the court lowered the applicant’s taxable income to SEK 125,008 for each of the assessment years. In consequence of this finding, the tax surcharges were also reduced, to SEK 14,495 and 12,614, respectively, for the two assessment years (in total approximately EUR 3,000). The court also decided that the applicant be compensated for litigation costs under the Act on Compensation for Costs and Expenses in Cases Concerning Taxes, etc. (Lagen om ersättning för kostnader i ärenden och mål om skatt, m.m., 1989:479). The applicant was awarded SEK 825 concerning the court proceedings and SEK 1,000 concerning the proceedings before the Tax Authority (in total about EUR 200). He had claimed SEK 825 and 3,500, respectively. The applicant appealed against the taxation and the tax surcharges to the Administrative Court of Appeal, where the case was still pending at the time of the present decision.