En Kafkaartad skatteprocess? - Kammarrätters rättstillämpning i mål om skönsbeskattning av oredovisade intäkter

Sammanfattning: It has been claimed in literature that the application of the rules about taxation of unreported income by Swedish administrative courts is insufficient from a legal certainty perspective. This essay considers whether this is the case. The essay is centered around the following questions: What are the requirements regarding legal certainty in the tax procedure? How is unreported income taxed? Who bears the burden of proof and what are the evidentiary requirements in cases concerning unreported income? Is the adjudication regarding unreported income by the administrative courts of appeal acceptable from a legal certainty perspective? Legal certainty is of great importance within tax law. It follows from the constitution and the Tax Procedures Act that the principle of legality and the principle of proportionality are to be applied. Tax surcharges are levied in cases regarding unreported income. These have been found by the European Court of Human Rights to be criminal penalties. The tax procedure therefore must meet the requirements in article 6 in the European Convention on Human Rights. This means that there must be a fair trial, a right to remain passive and a presumption of innocence. Tax returns are the most important means when tax is to be determined by the Swedish Tax Agency. What information must be included in a tax return can be found in chapter 31 of the Tax Procedures Act. Taxpayers also have an obligation to provide documentation which follows from chapter 39 of the Tax Procedures Act. The Swedish Tax Agency is authorized to carry out certain investigations. This includes issuing injunctions, audits and inspections. If a person who is obliged to file a tax return has omitted to do so, or if the tax cannot be determined from the tax return, the tax shall be determined through discretionary assessment. This means that the tax is determined according to what is reasonable with regard to the available information. The Swedish Tax Agency bears the burden of proof regarding the basis for discretionary assessment and that the estimated tax is reasonable. The evidentiary requirement is probable in the ordinary procedure and clear regarding supplementary taxation. There has been critique regarding the application of the rules about discretionary assessment. Most of the critique has concerned weak evidence being accepted by administrative courts. Some of this critique seems to be justified while some can be questioned. The study of case law in the essay shows that the adjudication by administrative courts of appeal is not satisfactory regarding legal certainty. The flaws that are identified are that arguments made by the taxpayers are left unanswered, that the reasonableness of the estimated tax is not evaluated, evidence from one year is used for the taxation in another year and that a presumption that follows from RÅ80 1:56 is applied extensively and in conflict with article 6 of the European Convention on Human Rights.