Skattetilläggets förenlighet med Europakonventionen

Abstract

According to Sweden’s current system, a tax surcharge may be imposed upon atax payer for providing false information. They may also be charged with taxevasion crime based on the same false information. The European Convention onHuman Rights (ECHR), which has been law in Sweden since 1995, contains aprohibition against being punished twice for the same offence under protocol 7:4.The question of whether the Swedish system violates this prohibition has beentested in the European Court over the years. In a judgment from 2009 -Zolotukhin against Russia - which was determined in Grand Chamber, the Courtexpressed the need to clarify how the assessment of the issue should take place.Although the European Court by the Zolotukhin case has changed its previouspractice, the Swedish Supreme Court (Högsta domstolen) in two recentjudgements has chosen to ignore this and their view is that the Swedish systemdoes not violate the Convention. Their meaning was that the European Court’spractice was not clear enough. The Solna District Court (Solna Tingsrätt), in itsturn announced a decision only two weeks later which ignored the recent SupremeCourt Judgement. The District Court considered that the system was incompatiblewith the ECHR after the new practices of the European Court. This suggests thatthe legal situation in Sweden is extremely uncertain. The problem statement ofthis thesis is as follows: Is the Swedish system of imposition of tax surchargeswhile the taxpayer can be sentenced for tax evasion crime based on the same falseinformation compatible with ECHR protocol 7:4? Our aim has been to examinehow the Swedish tax rules look like at the moment and how the EuropeanConvention look at duplication of procedures, the principle of ne bis in idem.Another intention has been to examine whether a new Swedish legislation isneeded and also reflecting on how this new legislation might look like. In ourpaper we have applied the legal dogmatic method where we have studied laws,legislative history, doctrine and practice in the field. The findings are that theauthors believe that the legal situation has changed through the European Courtjudgement in the plenary Zolotukhin case, which is now considered to beindicative. The fact that Supreme Court ignored this new practice in their recentdecisions was according to the authors quite surprising. This suggests, asmentioned earlier, on a current controversy in the Swedish judicial system. Newlegislation will shortly be needed in the field. One option then is to go inNorway's footsteps, where the Tax Agency is forced to choose either to charge thetaxpayer a tax surcharge, or file a police report on tax evasion crime.