Dissertation committee:
Πάνος Λαζαράτος, Καθηγητής Νομικής Ε.Κ.Π.Α.
Θεόδωρος Φορτσάκης, Καθηγητής Νομικής Ε.Κ.Π.Α.
Γεώργιος Δελλής, Καθηγητής Νομικής Ε.Κ.Π.Α.
Σπυρίδων Βλαχόπουλος, Καθηγητής Νομικής Ε.Κ.Π.Α.
Πατρίνα Παπαρρηγοπούλου, Καθηγήτρια Νομικής Ε.Κ.Π.Α.
Ανδρέας Τσουρουφλής, Επ. Καθηγητής Νομικής Ε.Κ.Π.Α.
Αικατερίνη Ηλιάδου, Επ.Καθηγήτρια Νομικής Ε.Κ.Π.Α.
Summary:
Under the contemporary tax state, the right of hearing is highlighted as the fundamental institution of the tax-procedure, not only because it constitutes, as each and every right, a functional prerequisite of the market economy, which is an essential component of the tax state, but mainly thanks to its substantial contribution to the individualization of the tax liability, in such a way, that it complies with the constitutional principles of the lawfulness of the tax and the equality during the assessment of taxation.
The taxpayer’s possibility to influence the outcome of the tax procedure by formulating his defense arguments, in order to restrain an unannounced and adverse to his interests act, achieves simultaneously an individual and a collective purpose, by strengthening his ties with the tax administration and fulfilling effectively the administrative work. The acknowledge of its “status activus processualis” guarantees on the one hand the obvious of the correctness of the outcome of the tax procedure and on the other hand the substantial legitimacy of the tax act, through the realization of the content of the tax law, after exact, sincere and complete inclusion of the facts to the normative state.
For the reasoning of the current research, the main attribute of the right of hearing is its characterization as a principle. This occurs, not only because fundamental rights at the same time principles are, but also, according to the economic analysis of the law, the theory of principle accepts the innate relativity of the existence of goods, which allows the contraction and the expansion of its normative range during a conflict. The right of hearing conflicts with the principle of effectivity, which is an aspect of the public interest, looking for the best in concreto solution.
In the light of the foregoing, the temporal interpretative model, which distinguishes between conditions and exceptions of the implementation of the right of hearing is based on its dynamic character as a dictat of optimizing. This attempts, in the case of conditions, to present the real meaning, the compatible with its “ratio legis”, while in the case of the exceptions, it conducts the weighting according to the principle of proportionality between the right of hearing and the administrative efficiency.
The constitutional guarantee of the right of hearing as a “procedure within a procedure”, is capable, thanks to its direct implementation, to ensure the best solution at the least cost. The only sustainable solution, thus efficient, is the in concreto weighting of the above mentioned conflicting goods (right of hearing - administrative efficiency) and not the ex ante exclusion of the right of hearing, as a worthless form of administrative cost. Such an opinion would recommend a deduction from the guarantees of the rule of law and does not comply with the non - fiscal purpose of the tax procedure.
Keywords:
Right of hearing, tax, tax procedure, tax administration, code of tax procedure, tax state
