POPOVICI v. AUSTRIA
Inadmissible
Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Nina Vajic
The applicant, Mr Livius Popovici, is an Austrian national who was born in 1927 and lives in Vienna. He was represented by Mr Reif-Breitwieser, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. By a decision of the Tax Authority (Finanzamt) of 9 December 2002 the applicant was ordered to pay a “first surcharge” for the late payment of his income tax (erster Säumniszuschlag) for the years 1996, 1997 and 1998. The Tax Authority held that the applicant had failed to pay the taxes by their due date of 11 November 2002. By letters dated 17 and 18 December 2002 the applicant appealed against the decisions regarding the surcharges for income tax for 1996 and 1998 respectively. The surcharges amounted to 2% of the outstanding taxes, totalling 137.91 euros (EUR). By a decision of 3 June 2003 the Independent Financial Panel (Unabhängiger Finanzsenat – “the IFP”) dismissed the applicant’s appeals as ill-founded and upheld the decision of 9 December 2002. The applicant, who was in receipt of legal aid, complained to the Administrative Court (Verwaltungsgerichtshof) on 29 September 2003, arguing that the law applicable at the time the tax surcharges were due, did not provide for “first surcharges”, but only for “surcharges”. On 18 November 2004 the IFP submitted comments on the applicant’s complaint. On 6 December 2004 the applicant submitted comments in reply. By a decision of 4 June 2008 the Administrative Court rejected the applicant’s complaint. It held that while the law in force at the time only provided for (one) surcharge, and “first”, “second” and “third” surcharges were only introduced by a later amendment to the law, the applicant had not suffered any disadvantage, as the substantive content of the law before and after the amendment was the same. The amount of the surcharge itself was the same under the law in force at the time as the amount of a “first” surcharge under the law after the amendment. It was only their denotation that had changed. The decision was served on the applicant’s counsel on 2 July 2008. On 4 March 2010 the applicant informed the Court that by a decision of the Tax Authority of 30 March 2009, the decision obliging him to pay surcharges had been annulled. Section 217 of the Federal Tax Act (Bundesabgabenordnung) deals with the imposition of surcharges for the late payment of taxes. The provision in force at the material time provided that the surcharge was to be fixed at 2% of the amount of tax not paid in time.