On 21.09.20200 Administrative Court issued a decision in Case No.334/2017 (OCEAN AQUARIUM LTD -v- THE REPUBLIC OF CYPRUS), annulling the decision of Commissioner of Income Tax to impose Defense Contribution to a Company.
Α) The facts of the case are the following:
- The Commissioner of Income Tax (hereinafter referred to as "The Commissioner") had imposed income tax for the year 2003 to a Company, to which the Company objected, requesting a change of the proceeds for the tax. The Commissioner then rejected the Company's objection. The rejection of the Commissioner was annulled by a Court Decision dated 30.06.2009.
- The Republic appealed the above Court Decision, but the Supreme Court rejected the appeal on the basis that the Company was exempt from income tax for a period of ten years based on Income Tax Law (the "Appeal Decision").
- On 2013 the of Director of Internal Revenue Department issued tax in relation to Defense Contributions for dividend distributions for tax years 2003-2007. The Company objected but the Commissioner rejected the Company's objection, insisting on imposing said tax. The Company then proceeded with Court measures in the Administrative Court, however, on 2017 the imposition of said tax was cancelled by the Tax Department due to the reappointment of the Commissioner with retrospective effect, the above tax imposition is cancelled. Due to the above new taxes were issued and a new decision on the above objection was issued, that was similar to the previous one (hereinafter referred to as the "Second Rejection").
Β) Case No.334/2017 – Administrative Court – The Arguments of the Parties
- The Company then proceeded with filing the above-mentioned Case
No.334/2017 with the Administrative Court aiming to annul the
Second Rejection. The Company's advocates arguments were the
- a) The decision for Second Rejection was taken by a body appointed by a legislative provision that is contrary to the Constitution. Article 125 of the Constitution provides that it is the Public Service Committee that appoints the Commissioner, and not the Council of Ministers, as Article 4 of Tax Department Laws provide.
- b) No legitimate decision from the Competent Body was
- There was no authorization from the Commissioner to the official whoissued the Second Rejection.
- Additionally, since the previous taxation was not cancelled but it wasrevoked, the retrospective effect given to the Second Rejection was against the law, and it violated the precedent set by the Appeal Decision, that the Company was exempt from taxation for a period of ten years.
- c) The principles of good faith and the legitimate trust of the citizen to the Republic were violated.
- d) There was a lack of proper investigation and lack of reasoning in the Second Rejection.
- The advocates of the Republic did not agree with the above
arguments, insisting that the issue raised in relation to the
unconstitutionality of the appointment of the Commissioner was not
pleaded. The Court rejected their argument since the matter was
indeed included in the pleadings. The learned advocates of the
Republic also supported that, if the appointment of an
administrative body is unsubstantiated (that is, not all the
provisions of the law have been followed in regards to their
appointment) it is considered as a de facto administrative body and
their decisions are in full effect until they are cancelled or
revoked and they are not affected. The Court was also presented
with the written authorization of the official who issued the
Second Rejection and also supported that the rest of the
above-mentioned arguments should be rejected as
It is noted that the appointment of the Commissioner was deemed unconstitutional by a decision of the Administrative Court dated 16.3.2020.
C) The Court Decision in above mentioned caseThe Administrative Court mentioned, inter alia, the following:
- The annulment of a decision of an administrative body (such as the Commissioner) renders the decision extinct ex tunc, that is, from the moment of its issuance and produces an absolute precedent towards everyone. Such annulment brings the parties to the position they were before the issuance of the decision in dispute (status quo ante).
- De facto administrative body theory does not apply when the provisions of the Constitution are violated and no legislation or administrative decision or act of any body can be contrary to the Constitution. Therefore, the appointment of the Commissioner, being contrary to the Constitution, renders the Second Rejection void and cannot produce any legal effect.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.