The Supreme Administrative Court issued a new interpretative ruling regarding the revision under the special order of Art. 122 of the Tax-insurance procedural code

By Interpretative Ruling № 2 of 02.02.2022, the Supreme Administrative Court ruled on two issues, which were controversially resolved by the courts. They refer to tax audit under the special order of art. 122 of the Tax-insurance procedural code under circumstances established during the audit under Art. 122, par. 1, item 2 and item 7 of the Tax-insurance procedural code. The Supreme Judges have accepted the following:

1. In case of audit under the special order of art. 122 of the Tax-insurance procedural code there is no legal presumption that the income of unidentified origin is from employment and represents social security income.
2. In the court proceedings under the disputed audit act, the revenue authorities shall bear the burden of proving that social security contributions are due.

The exact formulation of the two issues to be interpreted is as follows:

1. Is there a legal presumption that the income of unidentified origin is from labor activity and represents social security income, in the cases of an established tax base for taxation under Art. 122, par. 2 of the Tax-insurance procedural code, representing a shortage of funds of the audited person established during the audit, which the person needed to make the proven expenses during the respective tax period, but the source of financial assets (income) provided by the expenses in question, resp. the hidden income, as a result of funds received from the patrimony of the natural person – audited entity from various sources in the country and / or abroad, but not declared by him?
2. In these cases, who bears the burden of proving the indicated fact in the court proceedings for contesting an audit act, by which in the indicated factual findings, insurance obligations under Art. 124a Tax-insurance procedural code for periods after 15.02.2011?

In the reasons of the ruling the Supreme Judges initially specify that the interpretative issues refer only to the cases of conducting a tax audit under Art. 122 of Tax-insurance procedural code in case of proven by the auditing bodies hidden incomes and / or excess of the expenses over the incomes only of self-insured natural persons, who are obliged to pay in advance social security contributions, as well as equalization installments for determining their final amounts under Art. 6, par. 8 and 9 Social Security Code for the Pension Fund, for additional mandatory pension insurance under Art. 157, par. 6 Social Security Code, as well as for health insurance contributions under Art. 40, par. 1, item 2 of the Health Insurance Act for the labor activity performed by them. Regarding the first issue, it is stated that it is related to the circumstance whether the income with an unidentified source under Art. 122, par. 1, items 2 and 7 of the Tax-insurance procedural code also represent insurance income, on which compulsory insurance contributions are accrued. In this regard, a distinction is made between the concepts of taxes and social security contributions. The Supreme Judges have come to the conclusion that the presumption under Art. 123, para. 1 Tax-insurance procedural code is not applicable to compulsory social security contributions of self-insured individuals. It refers only to taxable income as a tax base for determining tax liabilities. Relying on the argumentation to the answer of the first issue, the General Assembly of I and II Division of the Supreme Administrative Court accepted on the second question that in the court proceedings on contestation by an individual of an audit act, with which the factual findings of audit under Art. 122, par. 1, items 2 and 7 of the Tax-insurance procedural code, insurance obligations under Art. 124a of the Tax-insurance procedural code, the revenue authorities bear the burden of proving that social security contributions are due.