Uporaba analogije v davčnem pravu

slovenian

2018

volume 44, issue 8

Narodna in univerzitetna knjižnica
(Obvezni izvod spletne publikacije)

The courts of many countries have for a long time limited the ability of the tax authority to "tax similar cases in the same way". In doing so, the courts based their decisions on the principle "no taxation without legal basis", which was repeated as a mantra, while rejecting the possibility of using teleological interpretation and analogy. The fact is that legal gaps and loopholes can appear in all (also tax) laws, as an implicit and unmistakable legislator does not exist. However, today most countries - and this circle is expanding with the spread of awareness and the need to use that (aforementioned) tax law maxim - emphasise the importance of combating tax abuses carried out in the form of legal transactions that formally fulfil the text of a statutory provision, but not its purpose and spirit. Given the possibility of misuse of the instrument analogy on the one hand and the emphasised protection of the principles of the separation of powers, the rule of law and legal certainty on the other, there is a reflection of the fact that filling the legal holes with analogy in the area of criminal and tax law is prohibited. In the meantime, the dilemma has already been clarified and the absolute tie to the criminal law maxim nullum crimen, nulla poena sine lege - as evidenced by developments in the German tax law system - is not justified.

25.03.2020