Retroactive Tax Legislation

1. Retroactive Tax Legislation Philip Baker QC Grays Inn Tax Chambers IFA Mauritius 10th May 2012

2. Outline of Presentation • A note on terminology • Policy considerations • National positions • The international, human rights position • The failure to grandfather • Concluding comments • A personal word – speaking in a personal capacity

3. 1) A note on terminology • NOTE: only concerned with adverse changes • Retroactive legislation: imposing a tax burden / a higher tax burden on income (etc.) already earned • Retrospective legislation: imposing a tax burden / higher tax burden on FUTURE income (etc.) from a transaction already completed • E.g. removal of tax-free pension receipts • Petit retrospectivity: announcing changes during current tax year

4. 2) Policy considerations • Retroactivity /retrospectivity undermine: • Legal certainty - predictability • Legitimate expectations (so may not be objectionable where there is no legitimate expectation – e.g. in cases of abusive tax avoidance) • Retroactivity undermines rights to enjoyment of property • Both damage respect for the rule of law and confidence in the reliability of the government concerned • Both can have a massive impact on investor confidence

5. 3) National positions • Complete ban on retroactive tax legislation: • Brazil; Greece; Mexico; Mozambique; Paraguay; Peru; Portugal; Romania; Russia; Slovenia; Venezuela (of countries’ known positions) • Almost total ban: Hungary; Poland; Sweden • Most countries: permitted only in specific situations, and with safeguards: • To counter tax avoidance; or • Where previous contrary expectations; and • Where there is a strong public interest

6. 3) National positions • The UK: • 1978 Hansard debate -> the “Rees Principles” • March 2011 – Protocol on Retrospective Tax Announcements • Monitored by Tax Professionals Forum • 11 instances since 1945 • To counter abuse tax avoidance schemes • To reverse unanticipated court decisions • Note: safeguards

7. 3) National positions France: Constitutional limitations in principle, based on art 16 of the 1789 Declaration of Human Rights : in particular, retrospective legislation should be justified by a an objective of sufficient general interest.

8. 3) National positions France: Constitutional Council on when it cannot do so: « if the legislator can modify a rule of law or validate an administrative act or private right retroactively, it is on condition of pursuing an objective of sufficient general interest and respecting final judgments and the principle of non-retroactivity of penalties and sanctions; that, moreover, the amended or validated act must not fail to have regard to any rule or constitutional principle, unless the general interest being pursued is itself of constitutional value; and, finally, that the scope of the modification or validation must be strictly defined »

9. 3) National positions France: See: http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/en201078qpc.pdf Previously decided case are however always excluded from the scope of the retrospective legislation if they are final : « décision passée en force de chose jugée » which includes court rulings even if they could still be challenged before the Conseil d’Etat or the Cour de Cassation for reasons of law. The Constitutional Council ruled also once that a retrospective legislation which only aims is to eliminate the effects of ECJ and Conseil d’Etat rulings is by nature unconstitutional - see: http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-1959/2005/2005-531-dc/decision-n-2005-531-dc-du-29-decembre-2005.976.html )

10. 4) International, human rights • No absolute ban on retrospective tax legislation • Contrast retrospective criminal legislation: • Art. 7 European Convention on HR (47 states) • Art. 15 International Covenant on Civil and Political Rights (167 states) • Note: application to tax penalties – cases from Bendenoun v. France (12547/86) to Jussila v. Finland (73053/01)

11. 4) International, human rights • Case law of the European Court of Human Rights: • Article 1, First Protocol – right to enjoyment of possessions: • ABCD v. UK (8531/79) • MA v Finland (27793/95) • SB v. Finland (30289/96) • Di Belmonte v. Italy (72638/01) • Yukos (14902/04) – change of law

12. 4) International, human rights • Retroactive / retrospective tax legislation must be • “in accordance with the law”; • “necessary in a democratic society”; • serve specific purposes (e.g. economic needs); • not impose an individual and excessive burden (balance individual rights with society’s interests) • Retroactive / retrospective tax legislation which does not satisfy these requirements will be unlawful misappropriation

13. 5) The failure to grandfather • Note: state practice – (UK and France) – exclude existing, decided cases from the effect of retroactivity • Principles involved: • Legal certainty; legitimate expectation PLUS • Right to a fair trial; • Respect for the rule of law; • Respect for independence of the judiciary; • Respect for the enjoyment of possessions

14. 5) The failure to grandfather • Aguardino SRL v. Moldova (7359/06) judgment of the 27 September 2011 • 126,000 Euros VAT plus 101,000 fine • June 2002 – Supreme Court upheld taxpayer • October 2005 – Parliament adopted “interpretative” change to the law • November 2005 – Supreme Court asked to review its judgment

15. 5) The failure to grandfather On Art 6 (right to a fair trial) “[25] The right to a fair hearing before a tribunal as guaranteed by Article 6(1) of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue their ruling should not be called into question ...

16. 5) The failure to grandfather On Art 6 (right to a fair trial) (cont) [26] Legal certainty presupposes respect for the principle of res judicata ... that is, the principle of the finality of judgments. This principle insists that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Higher courts’ power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination.”

17. 5) The failure to grandfather On Art 1, First Protocol (right to enjoyment of possessions) [40] The Court considers that the applicant company had a ‘possession’ for the purposes of Article 1 of Protocol No.1, namely the amount of money which it had been absolved from paying to the Inspectorate by virtue of the Supreme Court’s judgment of 19 June 2002. Quashing such a judgement after it has become final and unappealable constitutes an interference with the judgement beneficiary’s right to the peaceful enjoyment of that possession .... Even assuming that such an interference may be regarded as serving the public interest, the Court finds that it was not justified, as a fair balance was not preserved and the applicant company was required to bear an individual and excessive burden ...”

18. 5) The failure to grandfather • Breaches of Art. 6 (right to a fair trial) and Art 1, First Protocol (right to enjoyment of possessions) • NOTE: not an isolated case • Cases on reopening final judgments: Stere v Romania (25632/02); Stingaciu and Tudor v. Romania (21351/03); Blidaru v. Romania (8695/02); SC Pilot Service SA Constant v. Romania (1477/02); Dragu v. Romania (11947/06); Ciul v Romania (7644/04); Lefter Nita v. Romania (9410/04) • Cases on retroactive legislation without grandfathering EXISTING litigation: Zielinski, Pradal and Gonzalez v. France (24846/94); Arras v. Italy (17972/07); Agrati and others v. Italy (43549/08)

19. 5) The failure to grandfather • Wider implications: world-wide implications • Right to a fair trial: Art. 14 ICCPR • Universal Declaration of Human Rights: • Art 10 – right to a fair trial • Art 17 – freedom from arbitrary deprivation • Lack of respect for the rule of law – fundamental to all civilised societies

20. 6) Concluding comments Retroactive / retrospective tax legislation Needs to be justified as a matter of law It damages legal certainty and legitimate expectations It damages the reputation of the country concerned and has a negative impact on investors’ expectations

21. 6) Concluding comments Retroactive imposition of substantial tax-related fines Is a breach of human rights norms – ECHR and ICCPR

22. 6) Concluding comments • Retroactive tax legislation without grandfathering final and binding decisions is: • A breach of human right norms: the right to a fair trial, and the right to enjoyment of possessions / freedom from arbitrary misappropriation • A failure to respect the rule of law – contrary to principles of law recognised by all civilised nations • Undermines confidence in a nation’s judiciary and the entire legal and political system

23. Retroactive Tax Legislation Philip Baker QC Grays Inn Tax Chambers IFA Mauritius 10th May 2012