CECCHETTI v. SAN MARINO
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
1. The applicant, Mr Vincent Cecchetti, is a San Marinese national, who was born in 1956 and lives in Dogana. He was represented before the Court by Mr P. Reffi, a lawyer practising in San Marino. 2. The San Marinese Government (“the Government”) were represented by their Co-Agent, Mr G. Bellatti Ceccoli. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 1994 the Personal Income Assessment Committee (Commissione degli Accertamenti – “the CA”), an administrative authority responsible for auditing tax declarations, sought to ascertain the correctness of the income declared by the applicant for the year 1991. By an assessment dated 22 September 1994 it found that the applicant had failed to declare an additional sum of 417,817 liras (approximately 215 euros (EUR)). It therefore ordered the applicant to pay tax on the aforementioned amount plus interest, and the sanction established by section 63 of Law no. 91/1984 equal to the amount of tax payable on the additional amount of undeclared income. 5. The applicant appealed against the decision before the Board of Estimate (Giunta di Stima – “the GS”), an administrative body of contentious jurisdiction in fiscal matters, on the basis that he had been unable to make submissions to the CA, notwithstanding a request to that effect. On 28 January 1998 the GS upheld the applicant’s appeal, declared the CA’s findings inadequate and proceeded with a new tax assessment. It concluded that the applicant had to pay income tax on the higher (unspecified) amount, together with interest on that amount and the sanction established by section 63 of Law no. 91/1984 in an amount equal to a quarter of the amount of tax payable on the additional income. This amounted to EUR 13.91 in tax on the higher amount of income and a sanction amounting to EUR 3.48. 6. On 23 April 1998 the applicant instituted proceedings before the ordinary courts, asking the judge (Commissario della legge) to declare the GS’s findings null and void on the basis, inter alia, that the decision had been ultra vires, as the GS did not have the competence to proceed with the new tax assessment. 7. By a judgment of 11 April 2002 the applicant’s appeal was dismissed. However, having authority to look at all the reasons which could make a decision illegitimate, namely jurisdictional competence, an incorrect application of the law and acting ultra vires, the Commissario della legge declared the GS’s decision null and void on the grounds that the latter had wrongly upheld the argument that the applicant’s submissions should have been heard. The case was remitted to the GS for fresh consideration. 8. The applicant lodged an administrative appeal on 26 February 2003 and by a decision of 17 February 2008, published on 6 March 2008, the administrative appeal judge quashed the first-instance court’s decision and upheld the appeal. It considered that the GS’s decision had been null and void on grounds of non ultra petita, the latter not having had the competence to assess the matter but rather having been under the obligation to send it back to the CA. The administrative appeal judge remitted the case to the CA. 9. None of the parties having appealed against the judgment, it became final. 10. The remittal of the case required proceedings to be restarted before the CA. Despite a question to that effect, neither the applicant nor the Government have informed the Court of the progress of those proceedings following the lodging of the application in 2008. 11. Section 40 of Law no. 91/1984 (“the Law”), in so far as relevant, reads as follows: “The Personal Income Assessment Committee is the competent authority for the auditing of income received by physical persons and the imposition of any eventual administrative sanctions.” 12. Section 48(4) of the Law provides that the Board of Estimate is competent to rectify errors committed by the Personal Income Assessment Committee. Section 48(5) of the Law provides that a decision of the Board of Estimate can be challenged before the ordinary courts on the basis of a violation or incorrect application of the law, lack of competence or abuse of power. 13. Section 63 of the Law, regarding omission, incompleteness and false declarations, in so far as relevant, reads as follows: “If the declaration does not contain one or more assets from which income is derived, the monetary penalty may vary between a quarter and twice the amount of the tax due and the tax owed in respect of the income received from the undeclared assets. ... [I]f, save for the above-mentioned provisions, an individual has declared a net income below that assessed, the penalty applicable may vary between a quarter and twice the amount of the tax due in respect of the undeclared amount. The sanction is increased by a quarter if the difference between the assessed income and that declared includes income received from abroad, and is halved if the tax due in respect of the undeclared amount is less than a quarter of that assessed. ... No administrative sanction is applicable if the taxpayer has committed a material error or omission or falsity in his or her declaration where there was no criminal intent (dolo), in so far as well-founded reasons are presented.”