Are tax disputes capable of adjudication by a court, tribunal or body independent of the tax authority, and how long should a taxpayer expect such proceedings to take?
Tax (3rd edition)
Tax disputes usually start, prior to any litigation, by way of a formal complaint with the tax authority that issued the tax assessment decision. The decision is then re-examined by the tax authority. If no settlement is reached, the taxpayer can challenge the tax assessment in cantonal courts and federal courts, which are independent from the tax authorities. Ultimately, an appeal may be filed in front of the Swiss Federal Supreme Court.
Upon completion of an audit by the IRS, Taxpayers may protest any proposed assessment within the IRS at the IRS Appeals office. IRS Appeals is a separate body within the IRS that is intended to operate independently of the IRS examination function. IRS Appeals will attempt to resolve dispute issues through a negotiation that takes into accounts the parties’ likelihood of success on the merits (i.e., the hazards of litigation). Most disputes involving corporate taxpayers are protested to IRS Appeals and resolved there, rather than being litigated.
Taxpayers may also litigate a disputed tax deficiency in one of three judicial forums: the United States Tax Court, the Federal District Court for the district in which the taxpayer resides and the Court of Federal Claims. Tax Court is only the forum that allows prepayment review of a disputed assessment, whereas both Federal District Court and the Court of Federal Claims require the payment of the tax and filing a claim for refund. The Tax Court and the Court of Federal Claims are each courts of national jurisdiction and to different degrees specialize in tax matters. The Federal District Court is a court of general jurisdiction that handles a wide range of civil and criminal litigation. Decisions of all three courts are subject to appeal to the Circuit Court of Appeals in the region of the country where the taxpayer resides.
A taxpayer who disputes an assessment of tax and cannot resolve the matter at the audit or objection stage will generally have the right to file an appeal in the Tax Court of Canada. The Tax Court operates independently of the CRA and has exclusive jurisdiction to determine appeals on matters arising under certain federal legislation, including the Income Tax Act, the provisions of the Customs Act pertaining to customs duties and taxes, and the provisions of the Excise Tax Act that pertain to the federal goods and services tax. In each tax appeal the position of the Minister of National Revenue is represented by a lawyer employed by the federal Department of Justice.
Appeals involving relatively small amounts of tax may be resolved on an expedited basis under the Tax Court’s Informal Procedure rules. In non-Informal Procedure cases, where an appeal has not been set down for a hearing or terminated within four months after the close of pleadings, the Court will require the parties to submit for its approval a proposed schedule for completion of the remaining steps in the appeal. Tax appeals may be heard within 12 - 18 months after being initiated but complex cases or cases requiring a hearing of more than one week may take much longer. However, the vast majority of cases are settled prior to a hearing; the decision to settle on behalf of the Minister of National Revenue is taken jointly by the Department of Justice and the CRA.
Parties have the right to appeal decisions of the Tax Court to the Federal Court of Appeal, and in turn, but only with leave, to the Supreme Court of Canada.
Taxpayers who wish to challenge the correctness or reasonableness of a discretionary decision made by the Minister of National Revenue may seek relief by making an application to the Federal Court for judicial review of that decision. The Federal Court also has exclusive jurisdiction to grant certain types of relief against the Minister, including the issuance of an injunction, writs of certiorari, prohibition, mandamus and quo warranto and declaratory relief. However, the Federal Court, almost without exception, declines to hear cases involving challenges to tax assessments.
A tax assessment imposed in deviation from the tax return filed or following to an audit can be appealed within one month whereby this period can be extended upon request.
Upon the filing of the appeal the tax office has first the possibility to amend or withdraw its tax assessment or decision according to the appeal in a pre-decision. The pre-decision can be contested by the taxpayer within one month, whereby this period can be extended as well, in which case the tax assessment or decision is contested in the independent Federal Fiscal Court. Against the decision of the Federal Fiscal Court the taxpayer can appeal to the Supreme Administrative Court or the Constitutional Court (the latter in case the assessment or decision violates a constitutional right or guarantee or an unconstitutional law was applied when rendering the contested decision).
Administrative courts have jurisdiction over most tax matters, such as income tax and VAT (to the exception of registration duties, inheritance and gift duties, 3% real estate tax and wealth tax which are dealt with by the judicial courts). The first instance jurisdiction is the 'tribunal administratif' (administrative court) or 'Tribunal de Grande Instance' (judicial court). Appeal lies with the 'cour administrative d'appel' (administrative court of appeal) or 'Cour d'appel' (court of appeal). Finally, the 'Conseil d'État' (Administrative Supreme Court) or the 'Cour de cassation' (Judicial supreme court) reviews the legal conformity of decisions by lower courts and in doing so may, totally or partially, override a decision. The case is either settled by the Administrative Supreme Court (general case) / the Judicial Supreme Court or sent back for review to the administrative court of appeal / Cour of Appeal. As a general rule, it takes between 8 to 10 years to reach a settlement before the Administrative Supreme Court.
Preliminary injunctions ('référé') aimed at implementing temporary measures at an early stage can be ruled by Courts to prevent further damage being caused upon request of the taxpayer.
As an example, The FTA can be condemned to a 'référé-provision' (provisional payment) to the profit of the taxpayer – especially in matters relating to VAT credit, withholding tax claim, and reimbursement relating to the 3% surtax on dividends or CVAE. It takes usually between 4 to 6 months. The taxpayers can also challenge through preliminary proceedings the French tax collector's reject of the guarantees they provide to obtain a deferral of payment during the tax litigation.
Decisions of the tax authorities can may be can be challenged by submitting an application to the Tax Tribunal, which is an independent body, or to the Administrative Court. A decision of the Administrative Court may be the subject of an appeal to the Supreme Court. The Tax Tribunal is required to reach a conclusion within a year of receiving an application. There are no set time limits for the courts.
Yes, there are different levels of discussion: administrative and judicial.
A taxpayer that disagrees with certain tax obligations must challenge these it in court. However, tax authorities may issue an administrative tax assessment against the taxpayer to collect the corresponding debt (comprising principal, interest and penalties) if it considers that the taxpayer failed to fully comply with a certain tax obligation. Usually, this tax assessment notice is preceded by a tax audit, but in more recent years, it may be sent automatically to the taxpayer if, for instance, tax authorities verify that the information submitted electronically by means of a certain statement is not accurate.
Once a tax assessment notice is issued, taxpayers may:
- pay the debt within 30 days, with a discount on the penalty. Taxpayer may opt to pay the tax debt in a lump sum or in installments.
- file a defense to the tax assessment notice, which initiates the administrative sphere; or
- waive the administrative sphere by means of submitting the case directly to court.
(i) Tax Litigation in the Administrative Sphere
The taxpayer may challenge the tax assessment notice in the administrative sphere (federal, state or municipal, depending on the tax and tax authority charging the debt). At this sphere, no bond has to be posted.
Administrative spheres have three instances and are composed of technical judges.
Usually a taxpayer has a 30-day-term, counted as of the service of the tax assessment notice, to present its defense. At the federal level, for instance, the defense is sent along with the case records to the Federal Revenue Judgment Unit (DRJ), whereas at the State level, the defense is sent to the correspondent Regional Tax Judgment Unit (DRT).
The judges, who are usually representatives of the tax authorities with expertise on the matter under analysis, issue a first-instance decision. This why, this first instance decision, usually confirms the merits of the tax assessment notice. After receiving notice of said first grade decision, taxpayers may file and appeal (voluntary appeal) to the second instance bodies. At the federal level, the appeal shall be made to the Administrative Tax Appeals Board (CARF) and at the State level, the appeal should be made to the State Administrative Tax Court (TIT). Those bodies are composed by chambers with judges that are designated by both taxpayers and tax authorities. There is also a third administrative level instance that shall unify the administrative jurisprudence on a determined matter. An appeal to this third administrative level is only possible if the tax authority or the taxpayer is able to demonstrate that a different decision was granted by the same or distinct chamber on the same subject. Once the decision regarding this last appeal is issued by the Third Administrative level, the decision shall be declared final and unappealable (within the administrative sphere), and it shall be published in the Official Gazette. This is the time the decision becomes officially final in the administrative courts. The whole procedure should last approximately 3-6 years; however it may take longer if technical appraisals and additional proof is needed.
If the final administrative decision is favorable to the taxpayer, the tax authorities cannot take the case to the judicial sphere, except under very special circumstances. If the final administrative decision is not favorable to the taxpayer, taxpayer will be notified to pay usually within a 30 day period the remaining balance. If such 30-day term expires and the debt has not been paid, the Judging Tax Authority shall send the document representing the debt to the Office of the Attorney General. This authority, in turn, will register the debt as overdue State liability. After that, a certificate of overdue liability (“Certidão de Dívida Ativa” or simply CDA) will be issued. The CDA is the appropriate document to commence the tax foreclosure. In accordance with the law that governs the tax foreclosure, the certificate of overdue liability enjoys a presumption of certainty and liquidity.
According to the decree-law No. 1,025/1969 if the debt is registered as Overdue Liability, 10% of the debt amount will added to the certificate of overdue liability, corresponding to pubic attorney´s fees of the Office of the General Counsel to the State Treasury (10% when the debt is registered) An additional 10% of the total value will be added also in relation to the public attorney’s fees to the debt when the foreclosure procedure is filed.
After the debt is registered as overdue liability and the respective certificate is issued, the next step of the Municipal, State or Federal Tax Authorities shall be to bring a tax foreclosure and the taxpayer will have the chance to defend itself. In this case, Brazilian law sets forth that the debt has to be secured by a deposit, bank guaranty, a good, etc.
However, taxpayer may act before such procedure is filed, by means of filing some types of suits before the Judicial Courts.
(ii) Tax Litigation in the Judicial Sphere
As mentioned above, if the final administrative decision is unfavorable to the taxpayer (or if the latter has waived its right to challenge the tax assessment notice before the administrative sphere), the taxpayer may:
- file an annulment suit before courts, thus trying to annul the debt and / or the final administrative decision rendered pursuant to the same or different arguments already used in the administrative sphere,
- Writ of mandamus (are highly used against illegalities or abuses carried out (or about to be carried) by public authorities,
- restoration of undue payments (takes place when taxpayers wish to challenge the charges after having paid what the tax authorities deemed to be due) or
- await the enforcement of the debt by means of a tax foreclosure proceeding. In this case, taxpayer has to post a bond( cash, letter of guarantee, assets, surety bond etc) to discuss the merits and afterwards it may
Tax litigation disputes are decided by the State or Federal Justice, depending on the tax which is being challenged. The judicial proceeding is also decided within three instance levels. The judges of lower courts, as well as the ones of Federal and State Court of Appeals are hierarchically subject to the Superior Court of Justice and the Supreme Court, which is the highest body of the Brazilian court system.
A judicial litigation procedure in Brazil is also time consuming and could last approximately 5-8 years.
Voluntary Inquiry with the government
In order to avoid a dispute, a taxpayer may in case of doubt regarding the interpretation of a tax rule, file a direct inquiry with the correspondent tax authority (“consulta”). The government’s decision is binding to the taxpayer and the correspondent tax plus interest must be collected within 30 days after notification of said decision, without imposition of any penalty. If the taxpayer does not agree with the rendered decision, it can challenge it before the judicial courts.
As a matter of principle, tax disputes start with a formal appeal against a tax assessment or any other tax related decision. If the tax authority does not amend or withdraw its tax assessment or decision according to the appeal, the taxpayer can dispute the tax assessment or decision in the local fiscal court or the local administrative court depending on the kind of tax in dispute. The taxpayer can appeal against the decision of both courts at the Federal Fiscal Court or to the Higher Administrative Court or rather the Federal Administrative Court. Tax disputes can easily take several years to be resolved.
The first instance independent tribunal for tax disputes is the Tax Appeals Commissioners (“TAC”). There is currently a significant waiting list of cases before the TAC and typical waiting time to hear an appeal can be more than one year.
Appeals on points of law from the TAC may be made through the regular court system in the High Court, Court of Appeal and ultimately the Supreme Court. Appeals through the courts system can be expected to take more than 5 years.
Yes. The ITA may audit a tax return and issue its own tax assessment. Generally, a taxpayer may dispute a tax assessment by a written notice of objection to the assessing officer requesting additional review and change of the assessment. The written objection should be submitted within 30 days after the tax assessment is served to the taxpayer and must clearly state the grounds of the objection. The assessing officer who prepared the assessment does not hear the objection, but rather, it is heard by a second officer in the same local office. The decision of the second officer is subject to appeal to the District Court, which decision may then be appealed to the Supreme Court.
It should be noted that the ITA serves as Israel’s competent authority with respect to mutual agreement procedures applicable under Israel’s double tax treaties.
Depending on the specific dispute, it may take up to a few years to obtain a final resolution.
The Special Commissioners of Income Tax (“SCIT”) is a tribunal to hear and determine the appeals of taxpayers who are aggrieved by assessments raised by the Director General of Inland Revenue (“DGIR”). The SCIT is appointed by the King and is a body created under the ITA.
Taxpayers intending to appeal to the SCIT are required to file a notice of appeal (i.e.: Form Q) along with the grounds of appeal to the DGIR within 30 days from service of the assessment in question (or if it is an advance assessment, within the first three months of the year of assessment following the year of assessment for which the assessment was made).
On receipt of the notice of appeal, the DGIR has 12 months to review the assessment (DGIR may apply to the Minister of Finance for an extension should the DGIR requires more than 12 months) and if there is no reasonable prospect of coming to an agreement with the taxpayer, the DGIR will send the appeal forward to the SCIT; where he sends an appeal forward, he shall give the taxpayer written notice that he has done so. The appeal will then be registered before the SCIT and heard by 3 members of the SCIT. The entire tax appeal process typically takes around 1 to 1.5 years (excluding the review period by DGIR).
In exceptional circumstances, taxpayers may file a judicial review application before the High Court. Such an application typically takes around 6 months to 1 year to be disposed before the High Court.
In exceptional circumstances, especially in cases involving a large sum of taxes, some taxpayers have been successful in pursuing judicial review application against the IRB. This mode of proceedings has an advantage as the taxpayer may be able to obtain a stay order against the payment of the disputed taxes.
Taxpayers may seek remedies before the tax authority itself, although this is an optional remedy that may be bypassed.
Taxpayers that choose not to challenge a tax assessment before tax authorities, or if having done so, they wish to contest a confirmed assessment, may file an annulment lawsuit before the corresponding Administrative Tribunals, which are self-governing independent Tribunals.
Further, if the taxpayer wishes to challenge the decision issued by the Administrative Tribunals, an “amparo” lawsuit (which works much like an appeal in an international context) may be filed before the corresponding Circuit Courts.
The complete litigation process typically lasts from two to three years, but this timeframe may substantially vary on a case by case basis.
It is important to note that throughout an auditing process and before a final assessment letter is issued, taxpayers may turn to the Prodecon in order to engage in a mediation process in views of resolving the issue prior to escalating the matter to a Court level. Although during the substantiation of this process tax authorities could, at any time, refuse to enter into an agreement with the taxpayer, the effectiveness of this alternative dispute resolution method is undeniable, considering that in roughly 75% of the cases so handled, taxpayers and tax authorities reach an agreement.
This mediation procedure has proven to be exceptionally effective, especially if compared to traditional litigation, since agreements, if reached, are usually finalized within a six-month period.
If a taxpayer disagrees with a tax assessment, he may appeal to the Tax Appeal Board. A secretariat prepares the cases and drafts the appeal board decisions. For companies taxed by the Oil Taxation Office, there is a special appeal board.
The tax appeal system was subject to an organisational reform a couple of years ago, which introduced minimum tax competence requirements for the members to be appointed to the Tax Appeal Board. However, due to some of the other organisational changes – and some have argued not enough case handlers – we have seen a rather significant increase in the procedural handling time with the result that cases have piled up.
There are no special tax courts in Norway, but a taxpayer may appeal the case to the Municipality Court if he disagrees with the decision from the Tax Appeal Board. The deadline for initiating court proceedings is six month after the appeal board decision has been sent to the tax payer. A judgement from the Municipality Court may be appealed to the Appeal Court, who's decisions may under certain circumstances be appealed to the Supreme Court.
Resolutions issued by the tax authority can be appealed before the Tax Administrative Tribunal, which is the trial court for tax matters and the final step in the administrative process. This court is an independent body from the tax authority.
To file an appeal before the Tax Administrative Tribunal, the taxpayer has fifteen (15) days following the date that they are notified by the tax authority of the resolution deciding the recourse for review. The judge in charge of the appeal must determine the admissibility of the appeal, confirming that it was filed properly and in a timely manner by a party with legal standing and that the Tribunal has subject matter jurisdiction over the appeal. The admissibility of the appeal must be notified in person to the taxpayer.
Once the recourse for appeal is admitted, the tax authority has five (5) days to file counter evidence and the judge will decide on the admissibility of the evidence submitted by both parties. The judge may require the production of additional evidence by the parties in order to obtain further clarification on the subject matter of the appeal. The judge may also convene a hearing after all evidence has been submitted and evaluated, if it is deemed that further information is required to resolve the matter. Following the analysis of evidence and the hearing, if held, the parties have five (5) days to file written pleas. Finally, the Tribunal must issue its decision.
Based on the above the proceeding before the Tax Court may take as minimum one (1) year.
Yes, tax issues and disputes which are not resolved administratively can be elevated to the Court of Tax Appeals which has exclusive jurisdiction to adjudicate on the matter. The judicial proceedings normally take at least two years and another year or two in case of an appeal to the Supreme Court.
Apart from administrative claims (which are, sometimes, legally mandatory for certain matters before bringing them to the court), taxpayers may dispute a tax assessment or decision before judicial or arbitral courts.
Judicial proceedings may take many years to get to a final decision as there is the possibility of appeal to judicial higher courts. As such, taxpayers now tend to go to arbitral courts more often, as decisions can be taken within just a few months and with very limited possibilities of appeal.
Tax disputes (including assessment notices, denial of tax refunds, denial of application of preferential tax regimes) can be brought before courts. Particularly, with reference to tax disputes, the Italian judicial system features three judicial degrees. Jurisdiction for the first two degrees in tax related matters, is attributed to Provincial and Regional tax courts respectively. The third degree is under the jurisdiction of a specific section of the Supreme Court (Corte di Cassazione) specialized to deal with tax cases.
The length of the judicial procedure depends on the degree. Such length can be estimated as 2 years each for the procedures before the Provincial and the Regional tax courts and 4 years before the Supreme Court.
The taxpayers have the right to file a lawsuit against the tax assessments and penalties or other actionable administrative acts of the tax authority within 30 days as from the notification date. According to case law, taxpayers can also pay a tax under protest and file a lawsuit for the refund within the same time.
Waiting periods vary according to the caseload of the tax courts but whole litigation process can usually take up to 4 years (1 year before tax court and further 3 years at the appeal stage) as from filing of the lawsuit.
There are independent tax courts for tax disputes resolutions, the tax courts are independent from Ministry of Finance and other related tax execution authorities.
On the other hand, some alternative dispute resolution methods are also available to taxpayers. Reconciliation ‘after assessment’ is the most significant one. Taxpayers may apply for reconciliation prior to filing a lawsuit within the same time. It is hard to estimate a waiting time as the workload of reconciliation commissions vary, however, 3 months to 1 year should be expected. Applying for reconciliation prevents the deadline for filing the lawsuit being expired, which means if the reconciliation meeting ends without settlement, taxpayer can still file a lawsuit within the remaining days which cannot be shorter than 15 days.
There are other administrative mechanisms called correction request, complaint and reconciliation ‘before assessment’. In addition, all double taxation treaties that Turkey has signed have a mutual agreement procedure clause.
Yes. If a taxpayer receives an assessment finding deficiency in tax as a result of the tax audit by the competent reginal taxation bureau or the district tax office, and if the taxpayer wants to dispute it, the taxpayer can file, within 3 months from the assessment, either (i) a request for reconsideration with the National Tax Tribunal, or (ii) a request for reinvestigation with the district tax office or the reginal taxation bureau that rendered the subject assessment. The first choice should be common in practice. The National Tax Tribunal is a quasi-judicial body that reviews the legality and appropriateness of tax assessments, which is claimed to be independent from the tax authority but is technically within the administrative organ of the tax authority.
The review of the National Tax Tribunal generally takes up to one year. If it renders a decision in favor of the taxpayer, the tax authority cannot appeal and the decision is final. If it renders a decision against the taxpayer, the taxpayer can file a lawsuit requesting cancellation of the assessment, with the district court having jurisdiction over the case, within 6 months from the decision of the National Tax Tribunal. The review of the district court generally takes 1.5 to 2.5 years. If either the taxpayer or the government loses the case, it can appeal up to the high court, where the review would generally take six months to 1.5 years. If either the taxpayer or the government loses the case at a high court, it can further appeal up to the Supreme Court, however, the appealing party has to obtain a writ of certiorari to have substantive review of the Supreme Court; otherwise the appeal is dismissed without considering merits. The review of the Supreme Court, including its review of whether a writ of certiorari should be given, generally takes 1.5 to 3 or more years. These district and high courts as well as the Supreme Court are not a special court for tax or administrative cases, but are an ordinary court that handles civil and criminal matters along with tax cases. In judicial proceedings in courts, an appeal by the government is not prohibited.
Objections against tax assessments need to be filed within six weeks after the date of the assessment. If the Dutch tax authorities (DTA) deny the objection, the denial can be appealed with the Lower Court.
There are no courts in the Netherlands dedicated to tax matters only. Tax disputes are in first instance dealt with by the Lower Courts (Rechtbanken). Subsequently, Lower Court decisions may be appealed to one of the four Courts of Appeal (Gerechtshoven), where the special tax section handles the tax disputes. Further appeal can be filed with the Supreme Court (Hoge Raad), which has specific judges dealing with tax disputes. The Supreme Court does not deal with factual matters, but only with the interpretation of the law and procedural matters.
The objection process with the DTA can take a few months. If the taxpayer would continue litigation to the level of the Supreme Court, this can take many years. It is possible to request for postponement of payment of the disputed amount until a decision has been reached. In that case interest will be due against a rate that is equal to the legal interest on commercial transactions, with a minimum of 8% per annum.
Tax disputes must be initially referred to administrative bodies functioning within NAFA (i.e. administrative appeal). If such bodies fail to issue a decision or the decision is not satisfactory to the taxpayer, it can file a claim with the courts of law, where the dispute usually undergoes two tiers of jurisdiction. Usually, tax disputes are brought in front of the courts of law, since the decisions issued in the administrative appeal phase are usually not satisfactory to the taxpayer. As of the issuance of the challenged tax deed and until the definitive settlement of the dispute by the courts of law, the tax dispute may take up to 4 or even 5 years.
As regards the transactions conducted between affiliated companies located in different states (i.e. Romania and another state) that were adjusted from a transfer pricing (“TP”) perspective by the Romanian tax authorities, the available remedies consist either of the national challenging proceedings, or the international proceedings (only) in case of double taxation. In what regards the international proceedings, taxpayers may revert also to the proceedings under the Double Taxation Treaty (the “DTT”) concluded between Romania and another state or under the EU Arbitration Convention (the “EUAC”). We underline that although the mutual agreement procedure provided under DTT and under the EUAC are both international dispute resolution instruments with certain similarities, there are major differences between them. Advanced Pricing Agreements (“APA”) are available as a tool to mitigate TP controversy.
Yes, there is an Income Tax Tribunal (“Tribunal”) that handles tax matters. Members of the Tribunal are appointed by the Minister by notice in the Gazette and hold office for a period of one year or for such other period of time specified in the notice of appointment. Any party to proceedings which are to be heard by the Tribunal may serve notice on the Tribunal’s clerk requesting a date for the hearing to be fixed. On receipt of this notice the clerk shall send notice to each party entitled to attend the proceedings of the place, date and time of the hearing. The date of hearing unless specified otherwise by the parties shall not be earlier than twenty eight days after the date on which the notice is sent to the parties.
Any party to the proceedings if dissatisfied with the determination or decision as being erroneous in point of law, may within twenty one days after the final determination, by notice served on the clerk and payment of the fee require the Tribunal to state and sign a case for the opinion of the Supreme Court.
The first instance tribunal for most tax disputes is the Tax Chamber of the First-tier Tribunal (FTT). The Upper Tribunal (UT) commonly deals with appeals from the FTT only on matters of law. However where the case is categorised as complex and where the UT and both parties consent, the UT may hear the case at first instance. A case requiring a hearing of less than a week will usually be heard by either tribunal within a year.
Appeals from the Upper Tribunal are to the Court of Appeal, then to the Supreme Court. In both instances, permission is required and appeals can only be made on questions of law. Cases usually take around 18 months to complete in the Court of Appeal and two years in the Supreme Court. All tax tribunals and courts mentioned above are independent of HMRC.