Invalidation of the Transactions upon Initiative of the Tax Administrator
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Abstract
An institute of invalidation of the transactions shall be considered as one of the essential institutes of the Civil Law and the stability of the legal system strongly depends on interpretation of the aforesaid institute. Tax Law shall not treat rules regarding conclusion and validity of the transactions differently from as it is established by the Civil Law.
In the Article the Lithuanian tax administration practice of application of indirect methods for determining the tax base for the transactions, following opinion of the tax administrator, aimed at avoidance of the taxes are analyzed. The author analyzes novelties of the Tax legislation entitling the Tax Administrator not to recognize transactions entered into after 1 July 2002, for the tax purposes compares this institute of Tax Law with the institute of nullity of the transactions of the Civil Law, presents the positive practice of foreign countries jurisprudence.
In the Article not only practical but also theoretical issues of transition of tax and civil law, such as coordination of the principal of private law “everything what is not forbidden by the law is allowed“ with the principal of the public law “everything what is not established by the law is forbidden“, are being discussed. In addition, the matter regarding possibility to remove gaps of law is being analyzed. The author also claims that the tax administrator must strictly follow the laws specifying the limits of its competence. The practice of tax administration when the taxes are being calculated and the tax sanctions are being applied only based on subjective assessment of transactions and without gathering and assessing any of the objective evidence is vicious, jeopardizing the principals of justice and legal certainty. The author summarizes that assumption of the civil law that the transactions shall be valid until it is not established otherwise shall be applicable in the tax law, either.
Taking into account jurisprudence of the Republic of Lithuania, the author declares for leaving interpretation and application of the Civil Laws specifying invalidation of the transactions to the courts’ competence.
In the Article the Lithuanian tax administration practice of application of indirect methods for determining the tax base for the transactions, following opinion of the tax administrator, aimed at avoidance of the taxes are analyzed. The author analyzes novelties of the Tax legislation entitling the Tax Administrator not to recognize transactions entered into after 1 July 2002, for the tax purposes compares this institute of Tax Law with the institute of nullity of the transactions of the Civil Law, presents the positive practice of foreign countries jurisprudence.
In the Article not only practical but also theoretical issues of transition of tax and civil law, such as coordination of the principal of private law “everything what is not forbidden by the law is allowed“ with the principal of the public law “everything what is not established by the law is forbidden“, are being discussed. In addition, the matter regarding possibility to remove gaps of law is being analyzed. The author also claims that the tax administrator must strictly follow the laws specifying the limits of its competence. The practice of tax administration when the taxes are being calculated and the tax sanctions are being applied only based on subjective assessment of transactions and without gathering and assessing any of the objective evidence is vicious, jeopardizing the principals of justice and legal certainty. The author summarizes that assumption of the civil law that the transactions shall be valid until it is not established otherwise shall be applicable in the tax law, either.
Taking into account jurisprudence of the Republic of Lithuania, the author declares for leaving interpretation and application of the Civil Laws specifying invalidation of the transactions to the courts’ competence.
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Please see Copyright and Licence Agreement for further details.
