KOVAČ, Polonca. Selected Slovene tax procedure act's simplifications and theirs
implementation. Podjet. delo, 2012, letn. 38, št. 2, str. 395-416.
dr. Polonca Kovač1
SELECTED SLOVENE TAX PROCEDURE ACT'S SIMPLIFICATIONS
AND THEIRS IMPLEMENTATION
1. INTRODUCTION
2. THE DEVELOPMENT OF TAX PROCEDURES ACTS WITHIN THE EU AND THE
REDUCTION OF ADMINISTRATIVE BURDENS
3. THE GOALS AND SOLUTIONS OF TAX PROCEDURE ACT (ZDAVP-2)
3.1. The meaning of principle of proportionality
3.2. Selected solutions of ZDavP-2 to simplify tax procedures and stimulate competitiveness
4. IMPLEMENTATION OF (NEW) REGULATION SELECTED INSTITUTES IN PRACTICE
4.1. Advanced rulings
4.2. Writing off, delays and installments of tax liability
4.3. Notification (delivery) in tax proceedings
4.4. Self reporting or voluntary disclosures
5. CONCLUSIONS
Abstract
Tax law - especially procedural rights of taxpayers and measures in their favor with the overall
simplification of tax authorities’ activities - is of growing importance in Slovenia and European level.
Therefore it is not surprising that the Tax Procedure Act, in force from 2007, regulating relations
among the participants in tax collection procedures, is the key tool to introduce certain processual
reliefs for taxpayers and reduction of activities which lead to costly state operations with no value
added for the purpose of the procedure. Therefore, the law is prepared and implemented within the
government’s programme of reduction of administrative burdens following the principle of
proportionality. Procedures are to be simplified for both taxpayers and tax authorities but according
to European judicature still taxpayers’ rights have to be effectively protected. The paper explores a
selection of institutes introduced to this end (such as advance rulings, voluntary disclosures, tax
installments), how they have been regulated and implemented in practice from 2006-2010. It is found
that the tax procedure act does indeed play a significant role in enabling more effective tax collection
within environmental changes.
Key words: tax procedure, regulation, simplification, removal of administrative barriers, Slovenia,
European Union
Povzetek
Davčna zakonodaja - zlasti procesne pravice davčnih zavezancev - s časom tako v Sloveniji kot na
evropski ravni, pridobiva na pomenu. Posebej aktualne so poenostavitve v korist zavezancev. Zato ni
presenetljivo, da slovenski Zakon o davčnem postopku, v uporabi od leta 2007, predstavlja ključni
instrument določenih postopkovnih olajšav med udeleženci v postopku, tako da se opravlja korake, ki
povzročajo stroške, a nimajo dodane vrednosti za namen postopka. Zato se zakon spreminja v
kontekstu vladnega programa odprave administrativnih ovir, pri čemer zasleduje načelo
sorazmernosti. Postopki se poenostavljajo za zavezance in davčne organe, a ob tem morajo biti po
evropski judikaturi pravice davčnih zavezancev učinkovito zaščitene. V članku so obravnavni izbrani
instituti zakona v tem okviru (npr. zavezujoča informacije, samoprijave, obročno plačevanje davčne
obveznosti) in njihovo izvrševanje v praksi v obdobju od 2006 do 2010. Analiza kaže, da spremembe
zakona resnično omogočajo bolj učinkovito pobiranje davkov glede na okoljske spremembe.
Polonca KOVAČ, PhD, Assistant Professor, Faculty of Administration (Gosarjeva 5, Ljubljana), e-mail:
polona.kovac@fu.uni-lj.si.
1
Ključne besede: davčni postopek, regulacije, poenostavitev, odprava administrativnih ovir, Slovenija,
Evropska unija
1. INTRODUCTION
Taxes are the most important budgetary revenues in all countries, so there is no way to underestimate
its significance and by that also regulation of procedural aspects of tax collecting. This fact is evident
especially on European level.2 The radical changes in societal environment, like enlargement of
European Union (EU) or global economic crisis, introduce new challenges for tax authorities to
effectively run tax policies. The ultimate duty of authority especially in the times of the crisis is
enabling taxpayers not to be burdened excessively even on the basis of some fundamental legal
principles like equivalence and rule of law with certainty and proportionality and protection of private
property. It is on the shoulders of individual taxpayers where it is best felt how intensely the state is
operatively and not only declaratively pursuing the direction towards modern and lean public
administration through reforms of the administrative and tax systems and how much it is renouncing
its own power in the scope of democracy in cases of conflict with the protection of rights of individual
subjects. The selected judicature of Court of EU and European Court of Human Rights (ECtHR)
enlightens in this context enlightens some legal aspects of the solutions discussed as arisen from
decisions in the last years.
The purpose of taxation is therefore not money rising for the sake of it but participation of the
authorities (state, municipality or EU) at the profits and surpluses of private incomes and assets. It is
important to be aware of tax not being merely budgetary revenue but having social function of
contribution on incomes and property to finance common societal needs.3 Therefore the regulation
must enable tax liability fulfillment in different ways, simplified enough to run effective tax policies
and not burden unnecessarily taxpayers neither tax administration.
We distinguish two basic levels of effective but societal aware tax collecting. Firstly, there is a level of
regulation, supposedly being a driving force instead of impediment of sustainable progress. The
regulation can and must enable effective public policies and democratic due processes when imposing
legal obligations like tax levying. Secondly, there is a level of laws’ implementation, which can be in
line with constitutionally based limitations of (tax) power and goals of tax regulation in that respect
but also on the contrary tax regulation can be executed as a form of wars with taxpayers.4
The purpose of this paper is to give an overview of development in Slovene tax procedural law in the
context of reduction of administrative burdens, but not just as regulated or set provision on theoretical
grounds but to which extent the solutions have been or not realized in practice. We have therefore
selected some institutes defined in several documents relating to Slovenia’s development strategy till
2013 as a part of the governmental programme of reduction of administrative barriers, and went on to
select and compare statistical data recorded by the Tax Administration of the Republic of Slovenia
(TARS) on the realization of those institutes. We have analyzed the institutes regulated by the law in
force, namely Tax Procedure Act, passed in Slovenia in fall of 2006 (ZDavP-25). This measures are
supposed to increase the efficiency of TARS and at the same time impose as little administrative
burden on taxpayers themselves as possible. Some of the data have been taken from the TARS annual
work reports and some collected based on previous studies in early years of ZDavP-2 being in force.6
At certain points this data is compared with indicators in other countries by Eurostat or enriched by
calculations of Slovene Chamber of Commerce like on the issues of reduction of compliance costs.
The findings would presumably be an important ground for tax authorities in Slovenia to primarily
2
See in detail on several aspects in general and national reports in Lang et al., 2010.
More in Thuronyi et al., 1996, and Tratar, 2009. Cf. furthermore on efficiency of public policies in EU and Slovenia in
Virant and Kovač, 2010, p. 370, and Kovač and Virant, 2011, pp. 248.
4
Kobal, 2011, pp. 550 and further, for Slovenia and United States.
5
Tax Procedure Act, Zakon o davčnem postopku (ZDavP-2), Official Gazette of Republic of Slovenia, No. 117/2006,
24/2008, 125/2008, 20/2009, 47/2009, 48/2009, 1/2010, 43/2010, 97/2010, 13/2011 – official consolidated text.
6 Cf. in general in Kovač, 2009, and especially on selected aspects such as pre-filled income tax returns in Klun, 2009.
3
ensure the implementation of the tax procedural law on operative level in compliance with the societal
idea of taxation and furthermore to prepare (re)regulation on the field in future in the framework of
sustainable development.
2. THE DEVELOPMENT OF TAX PROCEDURE ACTS WITHIN THE EU AND THE
REDUCTION OF ADMINISTRATIVE BURDENS
Tax procedural acts, codes, principles and rules are in the last few decades given special importance in
the last quarter of the 20th and 21th century especially related to the notion of human rights in tax
procedures and efficiency of EU tax and other policies. Tax law is therefore among the most quickly
developed legal areas in all countries despite their differences in economic, legal and administrative
environment and tradition.7 Even more, there is a shift on tax field8 to strengthen the procedural
mandates of tax authorities and rights of taxpayers as part of substantive tax law, developed on
supranational or within countries constitutional levels. Additionally there is a process of better
regulation, not incorporating lower taxes as a result, but including the quality of the process, the
approaches, tools and methods for drafting and adopting regulations with consideration of the
necessity of regulation and its pureness in terms of administrative barriers. Assessing the quality of
regulation should not be biased in the sense of prioritizing more liberal or more social or
interventionist approaches. Better regulation tools are therefore in particular regulatory impact
assessment, consultation and simplification. 9
In Slovenia the tax procedures are regulated in great detail additionally given their status of a special
administrative procedure and therefore the need to strike a balance between efficient collection of
public duties in the public interest and the procedural protection of taxpayers’ rights. The legal nature
of the tax procedure in Slovenia law as an administrative matter is of exceptional importance both in
the national as well as in the European legal systems. Due to a number of legal disputes, the legal
nature of the tax procedure and control of the fulfillment of tax liability were reviewed on numerous
occasions by the Slovenian Constitutional Court.10 Important benefits of the definition of tax
procedure as a special administrative procedure from taxpayers’ point of view lie mostly in the
consistent use of the key principles of the General Administrative Procedure Act (legality, protection
of taxpayers and public interest, right to be heard, free evaluation of evidence, right to appeal etc.),
like in Slovenia in Germany or Austria as well.11 But in preparation of new tax procedure laws in
Slovenia, the option of abolishing the reference of the General Administrative Procedure Act has been
even considered numerous times with the goal to improve clarity of tax regulations, but not accepted
in the context of constitutional order. Even thought one must point out the ECtHR judgments on tax
cases are not relying on national definition. The court take a tax cases therefore as civil ones when
affecting the right to private property with excessive taxation and unjustified seizures and criminal
ones when taxes or tax measures are imposing sanctions on a taxpayer rather than purely levying him
due to his surplus in income or assets.12 Regardless to ECtHR definitions the main characteristics of
administrative procedure as opposed to civil or criminal ones are tax authority protecting public
interest by collecting due tax from taxpayer and therefore the mandate of administration is emphasized
in comparison to taxpayers’ rights. But if taxation and measure s are not excessive, tax collecting is
the normal characteristic of property also due to Slovene Constitutional Court.13 Taxpayer in
administrative tax procedure does not enjoy the privilege of non self accusation and has no right not to
give evidence against oneself in Slovene administrative legal system.14 But in some other countries the
principle of truth is met as soon as the standard of proof is beyond probability so that based on facts
7
In detail and on general cf. Nykile and Sek et al., 2009, and Pistone, 2009.
Barnes, J., in Barnes Rose-Ackerman and Lindseth, 2011, p. 350, and Kovač and Virant, 2011, p. 254.
9 Radaelli and De Francesco, 2007. See for tax field specifically in Thuronyi et al., 1996.
10 Comprehensive report in decision, No. U-I-252/00 from 2003, cf. Kovač, 2007, p. 156, and Lang et al., 2010.
11 Cf. Jakob, 2001, Žlender, 2008, Pistone, 2009.
12 Silvani and Baer, 1997, cf. on comparative overview of judicature in Nykel and Set et al., 2009.
13 No. U-I-59/93, issued 13. 5. 2004.
14 As in criminal affairs, see Ferlinc, 2009, p. 55. Cf. Funke v. France, ECtHR, Series A No. 256 – A, issued 25. 2. 1993.
8
finding procedure legal tax is levied15, so there has been a plan in Slovene ZDavP-2 to reconsider the
rule in future.
Given its importance, independent regulation of tax procedures appeared in Slovenia within a few
years of independence in 1996 despite the lack of any tradition in this field. Although a Tax Procedure
Act was drawn up and adopted with 240 specific provisions, the minimal procedural protection for
parties in administrative procedures irrespective of the individual administrative area meant that the
principle of subordinate use of the General Administrative Procedure Act (1999) remained in place.
The first Tax Procedure Act was replaced by the second in 2004, with the adoption of the revised act
formally dictated by Slovenia becoming an EU member. This required a number of provisions to be
transposed from the EU acquis communautaire into domestic legislation. The impact on tax
procedures largely related to reciprocal international cooperation between EU member states on tax
matters, including exchange of data, notification (delivery), insuring fulfillment of tax liabilities,
enforced collection procedures, and avoidance of double taxation, where Slovenia is rather effective
within EU and with 45 bilateral agreements. Compared to its predecessor, the amended act from 2004
brought significant growth in the scope of regulation with 410 articles, as it addressed not only the
levying, assessment, payment, supervision and enforcement of taxes, but also customs and excise
duties and other compulsory levies such as contributions to compulsory social insurance, membership
fees in chambers of commerce and industry with compulsory membership, etc. This led to
development of special tax procedures for the collection of individual types of levy in addition to
standard procedures, while type-specific procedures were upgraded. So the law and types of
procedures have expanded as follows16:
- general provisions on the scope of the law, (seven) fundamental principles and other general
common rules;
- using various methods of fulfilling tax liabilities (tax accounts or statements and deductions and
tax decisions issued on the basis of tax declarations and tax inspections);
- procedures in the supervision sphere (controlling tax statements, customs inspection, and tax
inspection);
- enforced collection (taxes and monetary liabilities from untaxed administratively enforceable
sources);
- international cooperation and
- specific tax procedures with specifics of assessments regarding individual taxes like personal
income tax, tax on inheritance or national TV fee.
But due to the broadened scope of the regulation and despite the fact that the majority of law came
into the force not before 2005 - the law has been amended from 2004 to 2006 twelve times, with some
amendments on reduction of administrative burdens and even oftener constitutional annulments on
some provision found not in compliance with Slovene Constitution (like on retroactivity, settlement of
delay interests, return of procedural costs if appeal successful).
In 2007 Slovenia introduced its third Tax Procedure Act, the basic purpose of which was to further
eliminate administrative barriers both for taxpayers and ultimately for the tax administration and the
public administration as a whole. This should make the overall national economy more competitive on
the global market. To that end, the current act introduces a whole range of simplifications.
Due to preparation of fiscal policies within EU Slovenia is despite procedural autonomy in principle
obliged to follow certain EU guidelines.17 In 2011 in the following the most important ones are
introduced by Strategy Europe 2020 and European Semester as a new model of EU’s cyclic budget
control. 18 Even under the process of Europeanization, before 2004, Slovenia complied above all with
the structural and macroeconomic criteria of EU, but is obliged even stronger as part of EU. The basic
requirements of EU in the incentives mentioned regarding the tax is for several years and presently
15
Cf. Tipke, 1993.
For Slovenia more in Jerovšek et al., 2008, in general cf. Thuronyi et al., 1996.
17 Cf. Pistone, 2009, Lang et al., 2010, and the leading case of Comet (1976), ECR 2043.
18 More in Kovač Arh, 2011, pp. 106-109, with some supporting statistical data.
16
(further) reduction or at least no increase in tax burden (on the economy). European average tax
burden was due to systematic approach so far successfully stabilized and even slightly decreased.19
Simultaneously EU requires from member state to increase the effectiveness of theirs public sector and
administration, which is way to gain more revenues and not higher taxation. To set these goals in the
context one has to mention that the extent of public administration in Slovenia in terms of economic
indicators is comparable to other EU countries with less than 10% of the working population
employed in public administration, but the structures are rather inefficient. Nevertheless GDP in
Slovenia is approximately 17.300 and EUR 20.700 measured at purchasing power parity per capita,
which is the most favorable result among the new or transition Member States. On the other hand less
favorable figures can be underlined as well, e.g. in investment, economic competitiveness and growth
rate, with Slovenia staying behind other MS with 3.7 % in average of EU27. Therefore Slovenia set
itself several priorities within Strategy Europe, some closely related to tax field like reduction of tax
burden to stimulate employment and competitiveness or increase efficiency of energy consumption by
so called green fiscal consolidation. Especially important is the programme of removal of tax and
other administrative barriers based on the Council decree from March 2007 within reduction of these
for 25 % until 2012 in European and domestic levels.20
Improving the quality of administrative services and removal of administrative barriers have been
important elements of the development of Slovenian public administration outside the EU context as a
driving force or area of modernization of public administration since independence (from 1991 with
direct effects after 2006) until today (2011). The programme orientation is to simplify and shorten
administrative procedures and decrease public and compliance costs of parties with increase in their
satisfaction, therefore the elimination of unnecessary elements with no value added for public
interest.21 It is about the same goals as in the deregulation process, but it focuses on the reduction of
state regulation and control. The highlight in this areas was in Slovenia probably the project »one-stop
shop« in practices from 2008 that provides fast, easy and free arrangements (in one location or even
online) for all administrative services for business start-up with cca 10.6 million EUR savings
annually (75 % of all before that). But one has to emphasize the programme as continuous check out
of all regulation prepared and denial of those which do not eliminate or even impose new barriers. The
Ministry of Public Administration who is a gatekeeper works efficiently with the simplification of
regulations proposed in 40 % in 2007 or 19 % in 2009 with 5-40 million savings annually. These
savings or reduced compliance costs are calculated according to the Standard Cost Model (SCM) as
the costs that businesses face in adjusting their internal or external operations to regulatory
requirements.
In addition to the punitive function of tax administrations, there is an increasing focus on their role as
a special or general preventive force, wherein the tax inspectorate with cca 400 inspectors does not
function as an independent administrative body as in other administrative fields in Slovene public
administration structure, but in coordination with the overall TARS with 2600 employees altogether.
Even more, there have been serious plans to join up TARS and Customs Administration with cca 800
employees as to run procedures more unified and organize the work more rationalized. The idea has
been lately renewed due to transfer of mandate for some tax enforcements in 2010 from one authority
to the other what clearly disclosure different workloads and even cultures (internal and towards the
taxpayers) of the two which are not justified. By that tax authorities could even improve the data on
TARS efficiency with comparatively low 0.96 % of tax collected for its own activities.
3. THE GOALS AND SOLUTIONS OF TAX PROCEDURE ACT (ZDAVP-2)
3.1. The meaning of principle of proportionality
19
See for the period 1996-2009 by Eurostat, 2011.
Like by in Slovenia still rather undeveloped common consolidated corporate tax base, CCCTB, cf. more in Lang et al.,
2010.
21 Klun and Blažić, 2005, Radaelli in DeFrancesco, 2007, Josevski, 2008, Muewese in Kovač, 2009.
20
ZDavP-2 is the first tax law in Slovene legislation that specifically regulated fundamental principles of
tax procedures.22 The set of seven tax procedure principles in ZDavP-2 should due to the fundamental
goal of the standardization process, which is to balance effective collection of tax funds and the
protection of taxpayer rights, include some principles which predominantly bind the tax authority23
and some principles which bind the taxpayers (like lawful fulfillment of obligations) or even third
parties (like employers to submit data for the taxation). In this sense, the principles are indeed more
than plain abstract wordings; they are above all interpreting rules for individual institutes. Taxes as a
burden in accordance with justice, legitimacy and proportionality should not be directed solely at
fiscal interest but should function as pointers of economic, social, cultural and political activity. As per
basic principles of administrative and especially tax procedures, the public interest of tax collection is
not absolute and unlimited and the authority and measures of tax authorities are limited mostly by the
principles of legality and proportionality. The proportionality in regulation requires in material sense
for instance introduction of general tax reliefs and in processual aspect no procedures when the cost of
theirs administering would exceed the tax levied or allowed delay if no clear danger the tax not to be
paid but the delay would help a taxpayer to survive on the market. Furthermore it is important not to
regulate a principle or a right just on the paper but to regulate effective protection of it. If not, the right
to return overpaid tax for example would become a paradox.24 The latter is unfortunately the case not
just in countries with traditional efficiency problems like Italy but even in the homeland of Rechstaat,
as the Court of EU had to stress in the case of Gerritse v. Germany in 2003 with several following
years after the judgment that the state would not enable the taxpayer the tax over collected.
The strict legality in tax law is grounded by tax as a special public fee, intended to cover the needs of
public finances in general. Therefore any tax burden is theoretically appropriate if it leads to
satisfaction of public needs. But that is why in tax matters the authorities are bound when regulating
the area by necessity to achieve the purpose and by proportionality between the measure and its
purpose. General rule says, that public authority can enforce certain obligation in relation to citizens
(and legal entities) only if and whether said obligation is absolutely necessary and in public interest in
order to achieve a specific goal of public politics. The principle of proportionality is in this context
implemented in twofold way:
- a process: how to run a procedure like protection of the privilege of silence for witnesses ()
and
- in a substantive sense: taxes not to be excessive (but can be progressive,) and which measure
to be selected to collect tax especially in enforcements.25
The proportionality is furthermore the key principle in the implementation of the regulation. One of
the leading cases from judicature of Court of the ES, that emphasizes both aspects of proportionality is
30 years old, namely joined case National Panasonic v. Commission.26 Today the same rule is in place
as in Jusilla v. Finland or Yukos v. Russia, in which ECtHR found the breach of the conventional
article on fair trial.27 Like in Yukos case when the authority gave legal assistants of petrol company as
a taxpayer 43.000 pages of evidence material not before four days to the trial and appeal procedure
initiated only 21 days after issuing first instance decision. As the court stated the goal of efficient
procedure id legitimate, but it cannot justify breaches of defense rights. Furthermore it is not
proportionate to immediately confiscate and sell the main production unit in enforcement procedure
despite less invasive measures possible with the same effect for the budget. Such measure disables
taxpayers’ capability to pay the debt, drives them to bankruptcy, what in long term decreases tax
revenues and directly damages the budget.
3.2. Selected solutions of ZDavP-2 to simplify tax procedures and stimulate competitiveness
22
Cf. Nykiel and Set et al., 2009, for EU, ECHR and OECD principles.
Like proportionality or protection of tax privacy, more in Pistone, 2009.
24 Several authors on these aspects, like Thuronyi et al., 1996, Nykiel and Sek et al., 2009, Lang et al., 2010.
25 Pirnat et al., 2004, p. 889, for tax procedures especially in Jerovšek et al., 2008. See on the proportionality in processual
way in Tipke, 1993, and on non-excessiveness but the progressivity in Thuronyi et al., 1996.
26 136/79, (1980) ECR 2033; (1980) 3 CMLR 169; (1981) 2 All ER 1.
27 Jusilla v. Finland, No. 73053/01, issued 23. 11. 2006. Yukos v. Russia, No. 14902/04, issued 20. 9. 2011.
23
The law, in force from 2007, brings the whole set of novelties and strategic structural improvements in
the context of regulators’ awareness of tax regulation as a factor of macroeconomic development.
Especially a goal of enabling the competitiveness of companies in Slovenia (and EU) led the Ministry
of Finance when preparing the law and its amendments from 2008-2011 to simultaneously relieve
taxpayers’ burdens in material and processual way and to set new institutions to stimulate further
economic activity. The growth rate of GDP is in Slovenia 1.9 % for 2011 as has dropped from 6.9 %
in 2007, which is a worrying fact due to more favorable trends in other comparable countries (like 3.5
or 4 % in Slovakia and Poland as stated by Eurostat).
Therefore it is not surprising that in the 2008-2012 programme of reduction of administrative barriers
for 25 % in EU Slovenia plan to further reregulate the ZDavP-2 as in the last years with the orientation
on TARS administering as simple as possible and with special focus on lowering the costs of
procedures. The simplifications in ZDavP-2 are one of top priorities with 15-17 million EUR assumed
savings annually and 30-40 million EUR more with the novelties if law on VAT on the side of
taxpayers.28 Simplifications are run in the parallel in the substantive law and regulation of procedures
to achieve optimum effects. But it is not just about regulation. The determined management can by
smart organization and goals driven leading style develop towards taxpayer oriented culture among the
tax officials even without reregulation. As practice confirms with successfully run projects from 2008
on, for example reducing time limits for VAT return from 60 to 21 days, speeding up appeal
procedures up to six months or increase efficiency of tax enforcement by phone reminders.
On the other hand certain solutions cannot be realized without de- reregulation. Therefore new reliefs
for small and medium sized enterprises in the amount of 80 million EUR, general relief for 105.000
people with the lowest income or reducing tax brackets for personal income tax from five to three
must be introduced by law like in previous periods. In Slovenia in this respect there is a special need
of unburdening companies and labor force, since we have to take into account Slovenia has the highest
rate for personal income tax, namely 41 % already on the base of 15.269 EUR in 2011, and at the
same time social security contributions paid by employees, namely 22.1 % of gross income or 7.8 %
share of employees in GDP. 29
So there is no surprise that the goal of ZDavP-2 has been and still is to enable national economy to
strive for higher competitiveness by reducing tax burden on them. At least by simplifying tax
procedures and introducing new or broaden known procedural institutions to help (the well
intentioned) taxpayers and tax authorities at the same time. These novelties will be grounded on the
measures introduced in 2006 and the following amendments of ZDavP-2. To emphasize some of the
most important or evident:
- self-declaration or tax accounts as primary method of fulfilling tax liability, with additional
chance to correct it later on or submit it without sanctions even with the delay, but on the other
hand appraisal of the tax base with probability standard of proof and burden of proof on the
taxpayers as an exception to the rule in cases of taxpayers not cooperating and avoiding theirs
duties;
- the assessment procedure are shortened, especially when following statements of the taxpayer
or deciding on the basis of information from official registry, otherwise, a special assessment
procedure is conducted, when various items of proof are considered, usually mainly
documents, which the taxpayer must keep according to regulations and accounting
standards;30
- advanced rulings as a method of increasing the certainty of taxpayers’ future economic
activity when its taxation set in advance;
Detailed calculations in Klun and Blažić, 2005, and Avberšek, 2011, p. 112.
Data given in this and former paragraph by Žlender, 2008, Kovač Arh, 2011, pp. 107-108, TARS web pages (annual
reports).
30 Cf. Kobal, 2011.
28
29
-
-
-
-
in costs, a key new criterion of success or its interpretation has been added within the authority
and the taxpayer each cover their expenses, if the findings of the tax authority are in
accordance with the filed tax account or tax declaration, otherwise they are the burden of a
taxpayer, so this rule is a typical case of balance between public and private interest and an
attempt at redefining regulations into a reverse loop from implementation to shaping of public
policies;
differentiated and broadened insurance methods of payment and much broader possibilities of
writing the debt off, delaying its payments or payment by installment, by 3 months for any
claimant, for 12 months if insurance submitted and even up to 24 months in the cases when
payment would endanger a taxpayer to maintain a family or drive a company to insolvency or
omission of parts of its activity or be forced to sack a significant share of employees;
prefilled tax returns for personal income taxpayers from 2008;
reducing administrative costs of tax authority and taxpayers by replacing written summons and
applications with informal telephone or email communication, removal of expensive classified
personal delivery, annulment of tax authority to inform a taxpayer before initiating
enforcement procedure and list of debts as a sum of due duties became a new independent
instrument permitting joined up enforcement;31
no initiation of procedures or issuing an administrative act if cost of administration would
exceed the amount of tax etc. Regarding the latter the decision is not issued if the tax would
not exceed 10 EUR or by novelty in 2010 below 20 EUR in the case of personal income tax,
the return of tax is initiated ex offo only if the difference is over 10 EUR to calculated tax
liability, the tax is written of if not over 1 EUR on 31th of December, enforcement procedure
is not initiated if the debt is below 20 EUR.
Within the framework of the abolition of administrative barriers, the largest practical contribution of
the new ZDavP-2 is to be the principle of tax assessment through prefilled tax returns as a kind of
prior informative calculations with a mixed nature of assessment and decision. 32 The institute affects
approximately 1,300,000 taxpayers in 2 million residents of Slovenia and all paymasters and banks
included in the procedures. The law stipulates that the tax authority is to prepare through prior internal
control an informative assessment of personal income tax, which counts as a declaration (in order to
insure congruity with the general part of the law and above all assume responsibility of the taxpayer
for veritability, correctness and completeness of information) and at the same time the draft of
decision on the assessment of duty. After notification (normal, not personal, Article 85), the taxpayer
has 15 days to issue an appeal against the assessment, both in the sense of exercising tax reliefs
unknown to the tax authority and additional sources of taxation. A timely appeal in the form of a
supplemented informative assessment has the nature of the taxpayer's declaration. It is followed by the
issue of a decision according to the information of the taxpayer and tax authority with the option of
appeal. If no appeal is issued, the taxpayer is understood to have agreed with the decision and thus the
informative assessment becomes the final decision, as appeal is the process preamble for the filing of a
complaint (after the deadline for appeal has passed, the taxpayer is understood to have relinquished his
right to appeal). Only 7.3 % of taxpayers filed a protest in 2007, and even only 4.3 % in 2008. The
described solution is in full accordance with legislation and brings benefits to both taxpayers, even
with calculation of over 70 % reduction of compliance costs, and tax authorities. Using the SCM this
system saved 22.3 million EUR annually.33 In spite of transferring of procedural burden onto tax
authorities it should be emphasized that the taxpayer is obliged to take part in the process and must
object if his duties are assessed too low. If he does not receive an informative assessment (until May
31st), he is obliged to file his declaration on his own. But the tax authority thus proved to be an
efficient service provider34, while the advance informative estimate – which is an executory instrument
rather than a pre-compiled forecast with legal nature – makes the Slovenian regulation of income tax
31
Cf. Evans, 2003.
Article 267 ff. in use from 2008 on and Article 421 for transitional period of 2007 (more in Jerovšek et al., 2008, cf. Klun,
2009).
33 Calculations by Klun, 2009, for the years of 2007 and 2008, and on annual savings Virant and Kovač, 2011, p. 254.
34 Cf. Kopp and Ramsauer, 2003.
32
procedure one of the most advanced and efficient in the world.35 All rules exposed definitely show
systematic strives for reduction of administrative costs, not merely on behalf of tax administration but
taxpayers included.
4. IMPLEMENTATION OF (NEW) REGULATION SELECTED INSTITUTES IN
PRACTICE
Based on the theoretical guidelines and judicature we can summarize the growing notion of processual
regulation in tax field worldwide. If the regulation of tax procedures is not appropriate there is no
effective substantive tax law implementation. Tax authorities are less efficient in collecting tax, with
immediate effect and less revenues even on the long run. The importance of modern institutes in the
ZDavP-2 with novelties is therefore even growing within global economic crisis.36 Some of the new
arrangements in Slovene law are aimed at procedural simplification are clearly advantageous for
taxpayers, while in other cases work is simplified for tax authorities.37 To check both dimensions let us
check the regulation and its implementation on four areas:
- institutes aimed to support taxpayers: advanced rulings and the processual reliefs of tax
liability fulfillment by writing off, delay in payment or installments,
- institutes aimed to simplify and reduce costs of tax authorities’ activities: non classified
notification (delivery),
- institute in the crossing of both interest, from taxpayers and tax authorities: self reporting or
voluntary disclosures.38
Regarding these institutes, my hypothesis is that they are used with unequal frequency, but their
statistical use trend should be upward if the simplification goal is to be achieved in praxis. But this
paper only considers certain legislative institutes, while it needs to be stressed that a comprehensive
analysis of the tax procedure regulation and the RAB should involve different rules including those
not relating to the simplification or reduction of administrative barriers first glance, as the totality of
norms collectively results, in a complex manner, in the final outcome of (non-)realization of reform
goals.
4.1. Advanced rulings
The advanced ruling has been regulated in Slovene law firstly in 2007 (Article 14) as aimed also in
many other countries to increase taxpayers’ certainty on his tax liability in advance.39 The advanced
ruling by ZDavP-2 is information, issued by the director of tax authority at the request of a taxpayer
on the tax treatment of his planned transactions or business events with a 6 month reply timescale with
regard to a future taxation to facilitate the decision of whether the expected tax, as a part of expenses
compared to the expected profit, is an acceptable burden for a business transaction to be undertaken.
Information is binding for the authority in relation to a concrete taxpayer and can be even published
online with disclosure of individual data (in other countries the ruling is not published in sometimes
not even biding). Upon request, the taxpayer must present a detailed description of activities, the tax
treatment of which he is interested in, along with legal qualifications and other documentation, which
of course discounts the spirit of this institute with heavy bureaucratic requirements. The institute was
supposed to be primarily relevant for legal entities, especially foreign investors, with regard to the
actual application of tax legislation. The legal nature of the advanced ruling is not an administrative
decision (like in Finland with protection before the courts), since it is issued as an individual but
abstract act.
Table 1: Use of advanced rulings in practice 2007-2010
2007.
35
2008.
2009.
2010.
Klun and Slabe-Erker, 2009, p. 546. Cf. on general criteria in Hoegye, 2000.
See on the principles to be followed in the times of economic crisis in taxation policies in Tratar, 2009, pp. 1-18.
37
As proposed by Jerovšek already in 2005.
38 For more in earlier years cf. Kovač, 2009, pp. 103-120.
39 Cf. in Lang et al., 2010, for instance in Czech Republic, Finland, France, Germany, Hungary, the Netherlands, Spain etc.
36
Number of requests for an advanced ruling
Number of issued advanced rulings
Source: TARS (annual reports and interviews).
14
2
7
3
12
0
8
2
Advance rulings are clearly not functioning in Slovenia given the number of taxable economic
operators according to the Business Register, namely cca 160.000 legal entities and individual
entrepreneurs. Even requests that are submitted are not even procedurally adequate, and their
chronological frequency trend has been clearly negative. According to the TARS, the purpose of this
institute has been as well largely misunderstood in practice, as it is not uncommon that under Art. 14
taxpayers in fact request information on transactions or events already implemented or apply for a
general explication of the law. Contrary to this, an advance ruling is conceived of as an act that is
abstract (relating to legal situations not yet existing) and at the same time individual (relating to a
specific addressee or object of taxation). But if there has been a reservation after first or second year
that taxpayers just do not know the regulation and their options, we can conclude in the fifth year of
the law in force that the aim of the regulator is not met. However, as regards the type of tax and
applicants’ status, advance rulings do seem to be relevant for rather large corporations or transactions.
The Slovenian law is too bureaucratized in this respect, it definitely need simplification at least in the
term of shortening the due time to issue advanced ruling since 6 months is far too long for dynamic
economic environment.
4.2. Writing off, delays and installments of tax liability
Compared to the basic text of the law ZDavP has already in 2006 extended the term of deferred or
phased payment of a tax due from one to two years, allowing a cancellation, deferral, or phased
payment to be granted by discretion to individuals facing a threat to their and their dependants’
subsistence or, on the other hand, a deferral or installments for legal entities or sole traders or other
natural persons engaged in a registered activity if major economic damage would occur in case of
timely payment. However, a deferral or installments cannot be granted for prepayments, tax
withdrawals and certain taxes which, indeed, are technically arguable, as criteria of types of taxes and
modes of meeting the obligation are being mixed in defining exceptions. The ZDavP-2 in 2007 and
further on brought another significant new arrangements relating to the simplifications and reduction
of administrative burdens, such as the special case of deferred or phased payment if a taxpayer submits
a security or gives assent to the entry of a lien in the register but, because no criteria are required to be
met, only for up to 12 months (Art. 103). Further, a natural person not engaged in a registered activity
is entitled to apply for three monthly installments without having to submit a security or meet the
conditions and criteria laid down in Art. 101. Although interest runs during the term of deferred or
phased payment, it is only at the interbank interest rate for loans up to one year in order to preserve the
real value of the debt. All those changes have been envisaged to result in more obligations met in
accordance with the principle of legality, and therefore in fewer enforcement proceedings and,
primarily, fewer negative outcomes for taxpayers on the personal and business levels. The TARS data,
however, does not substantiate this assumption fully, indicating no particular increase in taxpayer
applications for writing off despite increasingly more favorable legislative conditions. But in 2008 an
important message was delivered from European Commission to regard writing off in certain taxes
like VAT as a form of illegal state aid in terms of common market. Therefore the law has been
changed and allows rather delays and installments of tax levied with the pay of inflation interests40
than writing it off.
Table 2: No. of writing off, delays (deferrals) and installments (phased payments) 2004-2009
2004.
2005.
2006.
2007.
2008.
2009.
Writing off
with
trend
indicator
40
3,065
3,282
 1.07
3,274
 0.998
1,816
 0.55
Cf. more in general Thuronyi et al., 1996; for Slovene law in Jerovšek et al., 2008.
1,710
 0.94
905
 0.53
Delays with
288
231
948
trend
 0.80
 4.10
Installments
580 438
927

with trend
0.76
 2.12
Only personal
income tax
Source: TARS (annual reports and interviews).
819
 0.86
4,716

5.09
494
 0.60
8,349

1.77
553
 1.12
12.190
 
4,005
7,314
10,700
It is clear from the table that the most currently relevant one among those institutes, especially
increasing after 2007 within economic crisis is phased payment, while other forms are diminishing or
stable. The increase in phased payment is undoubtedly attributable to the second paragraph of Art. 103
of the TPA-2, which has proved to be exceptionally currently relevant in the present social situation.
This is true for all considered institutes in the light of seeking shared interests of taxpayers (social
capability despite a tax liability) and tax authorities (preference of voluntary performance to avoid the
need for compulsory control and enforcement). As for the type of tax, personal income tax has been
the most present one throughout the period (as well as social security contributions, general sales tax,
and residential land use fee), especially with the law allowing three months installments without any
instrument of insurance submitted (Fg.1).
Figure 1: Number of granted requests for phased payment of tax 2004-2009
Source: TARS (annual reports and interviews).
More precisely, there were approx. 4.2 million euros of cancelled taxes, 10 million euros of deferred
taxes, and no less than 31.5 million euros of taxes to be paid in installments granted in 2008 (the
figures for the preceding year being approx. 7 (cancellation), 6 (deferral) and 17 (installments) million
euros). We can conclude that the legislator reached out to taxpayers (regretfully) in view of the global
crisis even before due time. This is reflected in data for 2009, indicating an almost 50% increase in
requests for a phased payment. In 2010 (according to Annual Report of TARS, issued in September
2011) the trend is going on, since the No. of applications for all three possibilities, writing off, delay or
to pay the tax in installments, has increased for 4.6 % according to 2009. The efficiency of TARS has
been improved as well since 14.7 % more applications have been solved in 2010 compared to 2009, so
there is 38 % less applications still in process in 2010 compared to 2009, but still a significant share to
be managed in future, expecting further increase in demand due to the new economic crisis waves.
4.3. Notification (delivery) in tax proceedings
The non classified notification instead of costly and more complicated delivery as used in all
administrative procedures with the focus on direct and personal delivery to the party has been
regulated after thorough debates in 2007 (Article 85 of ZDavP-2). Unlike Art. 87 of the GAPA, the
ZDavP-2 introduced in 2007 service by regular as non classified mail as sufficient for most written
communications in the tax procedure with a declared goal of savings made on account of the costs of
delivery to addressee only. Despite the possible reserve as to such arrangement being nonconstitutional in relation to the GAPA and required change of the law with the delivery to addressee
only in 2008 for decisions on phased payment and installments of tax, the data is so encouraging for
the TARS that the plan is to even broaden application of the institute as already seen in the amendment
of the law in 2008 by shortening the time for notification fiction to 15 days and transferring the burden
of proving non delivery of prefilled tax return to the taxpayer. The calculated payment date thus
roughly equals the sum of chronologic events: dispatch of the relevant act, 15 days for start of fiction
of effected service, and a further 30 days from the service for enforceability, i.e. the payment of tax
(general time limit for voluntary performance). Here the order of payments needs to be taken into
account (by the order of becoming due for taxes specified on the payment instrument). Fiction of
effected service, however, is just as important for filing legal remedies as it is for the payment
deadline and enforcement, and the TARS, with a view to a more undisputable calculation of the
relevant date, has therefore started to indicate the date of dispatch on the envelope (if these are
centrally printed decisions or a dispatch in installments, it is simply the outsourced contractor that
prints the date).
To quantify savings resulting from the shift from delivery to addressee only to regular mail delivery,
we have compared the decisions issued for personal income tax (cca 1.2-1.3 million annually) and
residential land use fee (cca 0.7 million annually). The number of decisions has largely remained the
same (about 2 million annually), while the difference in the costs of their delivery has been no less
than approximately 2-3 million euros annually.
Table 3: Costs of notification and savings on non classified delivery 2006-2010 (costs in EUR)
Year
No. of
Price of
Total costs of Applicable
Total costs
Savings on
documents
non
delivery by
price of
of delivery to account of lower
dispatched
classified
non classified delivery to
addressee
costs of delivery
delivery
mail
addressee
only
per letter
only
2,124,866
0.24
509,967
1.73
3,676,018
*3,166,051
2006.
2,012,670
0.25
503,167
1.78
3,582,552
3,079,385
2007.
2,013,327
0.26
523,465
1.83
3,684,388
3,160,923
2008.
1,075,776
0.26
279,701
1.87
2,011,701
1,731,999
2009.
**684,344
0.29
198,459,76
1.87
1,279,723
1,081,263
2010.
*Figure calculated for the case such service had been required by law.
** Just data on residential land use fee available.
Source: TARS (annual reports and interviews).
These savings are somewhat reduced by the cost of serving acts that nevertheless have to be delivered
to addressee only under Art. 85 because the taxpayer has not settled the liability in due time after the
fictional service (because either not having received the letter or having thus deliberately extended the
time in which the liability can be settled without sanctions). The number of such cases is not
monitored, but the assessment based on practical experience is somewhere around 5-10% of cases.
OECD finds that taxpayers whose non-compliance is non-deliberate account for approx. 70% so that
the specified amount of savings is evidently notably smaller in reality.41 This is directly confirmed
primarily by the competent enforcement staff asserting that enforcements have enormously increased
in number in 2009 over the years when the relevant documents had not yet been delivered by regular
mail (while empirical data on an annual basis has not yet been collected). Anyhow, in the 2,013,327
decisions issued for 2008, the costs of delivery would thus be EUR 523,465 for service by regular mail
plus an additional EUR 1,105,317, i.e. (only?) EUR 2,055,606 in total. As we can see, the amount of
savings is still considerable, especially as administrative costs are not being covered on account of
41
As 67 % in Denmark, according to Klun, 2009. Surely, there are significant savings at least in short run but side effects
visible as taxpayer burden or increase in work of tax authorities themselves on the field of enforcement.
collected tax with this money; still, compared with costs of enforcement proceedings, a benefit-cost
comparison most likely yields a negative result. So, it is indeed questionable whether in this case the
principle of proportionality is met. There is a question of achieving the same goal by other measures
like negotiating the price of the delivery with national post office for tax documents.
4.4. Self reporting or voluntary disclosures
Self reports have become part of Slovene tax legislation firstly in 2006 but broadened and elaborated
by ZDavP-2 in 2007 (Articles 55 and 63 with 396, 399 and related). The change of law together with
awareness of taxpayers on the institute surly contributed to higher scale of use of the institute in
practice. This institute of self reporting is supposed to result in positive effects for both the public
interest (with tax being collected that otherwise would probably not have been) and the taxpayer,
who/which does pay the tax as well as late-payment and penal interest, but is not prosecuted if
submitting the disclosure before non-compliance is detected by the tax authority. The law clearly
stipulates the relationship of handing in tax assessment or declaration within set time, after time lapse
and self-reporting, so that the account and issue of decision on the basis of tax declaration include a
notation of whether the primary submission was performed in due time, after due time in the sense of
return into previous condition and only then as self-report (not only the submission of information,
also payment). Such a sequence makes sense from the viewpoint of taxpayers' rights. Self-reporting
was introduced in Slovenia according to the Dutch model in 2006, both in presentation of accounts
and duties based on tax declaration. By rule, self-reporting is possible only until the start of fiscal
control (when the taxpayer receives the first written document from the tax authority, namely the
decision on the supervision, the self-report due date has passed). Within the fundamental principles of
the law, tax offices may (while not being obliged to) notify taxpayers of planned inspections by
telephone or an ordinary e-message to (legally) promote disclosures and decrease the inspections
needed (cf. data in Table 4).
Table 4: Voluntary disclosures in tax inspections procedures
2009.
2010.
Index 2010/2009
No. of tax inspections
7,676
7,760
101,1
No. of voluntary disclosures
230
395
171,7
Tax collected (in EUR)
2,448,392
3,171,113
129,5
Source: TARS Annual Report for 2010 (September 2011).
Self-reporting is in itself a form of stimulating taxpayers to fulfill their tax obligations, even
subsequently. Accordingly, the law exculpates such taxpayers from violation accountability.42 The
essence of the institute of self-reporting remains the same; a taxpayer is not punished for a committed
violation of lawful provisions or deficient payment of tax duties, if he discloses the true information
on his tax liabilities prior to the beginning of fiscal control.
The institute of self-reporting should stimulate taxpayers to voluntarily perform their tax duties and to
report any subsequent errors in tax accounts and declarations to the tax authority. The stimulation of
voluntary compliance is one of the most important principles of every tax administration – but an
efficient system of sanctions and fines is an indispensable tool for the stimulation of voluntary
compliance in tax matters,43 so in the case of self reporting a taxpayer is found guilty, just not
sanctioned. Such practice of notification is in accordance with protection of taxpayer's rights, if public
interest is not threatened, yet the notification cannot be requested by the taxpayer and the lack of prior
notice does not constitute any breaches of e.g. the right to be heard. The same has been emphasized by
Slovenia Constitutional Court, namely if an authority exaggerates in calling on taxpayer’s attention to
be a relief in the procedure it is a breach of free will.44
42
Even though cf. Ferlinc, 2009, on exculpation of only minor offences but still responsible for criminal offences.
More in Silvani and Baer, 1997.
44 Decision No. Up-134/97, issued 14. 3. 2002.
43
Table 5: Voluntary disclosures before (2006) and after ZDavP-2 (2007, 2009, 2010) - number of
disclosures and tax collected (in EUR, rounded)
2006.
2007.
2009.
2010.
No./share Tax/share
No.
Tax
No.
Tax
No.
Tax
of all*
of all
Type of tax
Personal
income taxes
&
contributions
Personal
income tax
Personal
income tax
prepayment
Corporate
income tax
VAT
Other duties
10
101,202
368
1,419
66,300
66,300
425
165,957
3,188
1,751
102,652
102,652
11.6 %
17
25,914
794
2,341 1,926,060
1,926,060
7.3 %
31 2,084,645
8
381,956
161
103
869 4,832,365
604 4,180,372
4,832,365
4,180,372
6.1 %
0
0
3,948
898
224,357
35,1 %
27, 2 %
224,357
33 % on
interests of
deposits +
Tax from
capital gains
Performance
of
international
treaties
Total
16, 4 %
0
0
0
0
491 2,759,674
0
0
0
0
8,562 8,007,686
11,330
1,520,789
4
5.964
19,216 13,225,474
others
21,315 10,474,691
*Partial data due to the change on statistical reports.
Source: TARS (annual reports and interviews).
As regards the type of tax, voluntary disclosures were the most numerous in personal income tax in
2006. But the amount collected being, as expected, is disproportional with the number of disclosures,
as certain taxes, by nature, are more voluminous than others. The most substantive yield from
voluntary disclosures in all years is thus attributable to corporate income tax and VAT, having
increased from approx. EUR 2 million in 2006 to 9 million five years later. According to all indicators,
both the number of voluntary disclosures and the amount of duties collected on their basis were
definitely increasing from 2006 on, but their structure is changing. Taxpayers evidently need time to
process new legislative arrangements, which, for example, are reflected in the remarkable increase in
voluntary disclosures from 2006 to 2009 for almost 4000 % and the tax collected for about 500 %, but
as expected with the following trend of increase in overall No. of disclosures in 2010 (for 11 %), but
the decrease in tax collected, even for 21 %, since the majority of disclosures are on very low amounts
within personal income taxes. On the other hand, in certain taxes voluntary disclosures are decreasing
in number, which in the case of personal income tax (by almost three times from 2007 to 2008) is
definitely the combined result of the newly introduced preliminary data verification followed by a
provisional tax specification as a pre-filled tax return; a similar observation applies for other duties.
Given the new sources it is clear that a further stabilization of the number of voluntary disclosures and
their structure by tax type is to be expected in the future. In total, approximately 45 million euros were
collected from 2006-2010 on account of voluntary disclosures. To quantify the institute’s benefits, at
least the costs of non-initiated inspections should be added to this amount, indicating that this institute
as such is to be preserved, though perhaps slightly technically improved. It is impossible, however, to
measure out the positive effect of the significantly higher level of tax culture undoubtedly ensuing
when liabilities are settled voluntarily.
5. CONCLUSIONS
The development of tax procedure legislation through tax procedural law in Slovenia is showing a
clear trend towards an increasing number of provisions to the benefit of commercial and other
taxpayers, which complies with the guideline of stimulating competitiveness of the home economy
and consequentially development of the EU. It may be concluded that the majority of the considered
institutes in this paper as incorporated into the Slovene tax procedure law in 2007 have measurable
effects in practice, so do realize the set goals, i.e. simplified procedures for taxpayers and tax
authorities. But it needs to be added that it does not apply for all the institutes. Even more important is
the realization that the data employed is not the only relevant one for a cumulative evaluation, as
individual regulatory rules produce complex combined effects working either in the same or opposed
directions, so that their projected positive effects may even synergically intensify each other or they
cancel each other out.
The tax procedure is definitely a meeting point of political, economic and other interests. Slovenia is
in this respect on a good heading, as it is striving to achieve set goals through a combination of
revision of normative acts, organizational measures and a general tendency to adhere to legislation at
the level of individual officials. But there are macroeconomic data warning that the measures
especially in regulation are taken too late and not radically enough. So it is important to follow the
path of simplified regulation with effective taxpayers’ rights protection even further within substantive
and processual law. The research on the area on applicability of certain institutes of simplification
must be important input information for the regulators to find the right balance of effective tax
collecting.
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