LEX LOCALIS - JOURNAL OF LOCAL SELF-GOVERNMENT
Vol. 12, No. 4, pp. 813-827, October 2014
Tax Law as an Independent Branch of Law in Central
and Eastern European Countries
MICHAL RADVAN
4
ABSTRACT Tax law science has a longstanding tradition in the USA
and Western Europe. In contrast, Central and Eastern European legal
science has only recently admitted the independent existence of
financial law. Financial law, however, is a very broad area of law.
This fact will lead to a diversification of financial law. The main
goal of this article is to confirm or refute the hypothesis that tax law
is an independent branch of law in Central and Eastern European
countries, specifically in the Czech Republic, Slovakia, Poland and
Hungary. For that purpose the criteria for being considered an
independent branch of law are analyzed, namely: separate and
specific object of legal regulation, method of legal regulation,
system and system coherence of legal norms, and social acceptance
of the branch.
KEYWORDS: • tax • tax law • financial law • branch of law • Eastern
European countries
CORRESPONDENCE ADDRESS: Michal Radvan, Ph.D., Associate Professor, Masaryk
University, Faculty of Law, Veveří 70, 611 80 Brno, Czech Republic, email:
michal.radvan@law.muni.cz.
DOI 10.4335/12.4.813-827(2014)
ISSN 1581-5374 Print/1855-363X Online © 2014 Lex localis (Maribor, Graz, Trieste, Split)
Available online at http://journal.lex-localis.info.
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1 Introduction
The development of legal specializations is gradual and largely dependent on the
diversity of the subject of knowledge. Every specialization provides its own
definition of its object as it develops and involves lengthy discussions regarding
what the object is, what defines it, and where the lines are that separate it from the
object of other areas of law (Knapp, 1995: 4). Legal science – jurisprudence is
thus a living science that is constantly evolving.
Tax law science has a longstanding tradition in the USA and Western Europe and
is sufficiently advanced that the question is hardly even posed whether tax law can
be considered an independent branch of law. In contrast, Central and Eastern
European legal science has only recently admitted the independent existence of
financial law, which split from administrative law in the second half of the 20th
century. Financial law, however, is a very broad area of law covering public
finance, the financial sector (banking, insurance, capital markets), currency and
foreign exchange, accounting, etc. Moreover this is an area of law that is
constantly evolving, with new laws being passed or existing laws being amended.
This hyperactivity stems not just from rapid economic development, to which the
law reacts sometimes quickly and sometimes slowly and with more difficulty, but
also from European Union law, which forces EU member states to incorporate
hundreds of EU directives into national legislation. In the next phase of
development of financial law it will be necessary to react to these facts, which will
without doubt lead to a diversification of financial law. Unfortunatelly, there are
no theoretical papers on this topic published in Central and Eastern European
countries.
The main goal of this article is to confirm or refute the hypothesis that tax law is
an independent branch of law in Central and Eastern European countries,
specifically in the Czech Republic, Slovakia, Poland and Hungary. For that
purpose the criteria for being considered an independent branch of law will be
analyzed, namely (Průcha, 2004: 34-35):
separate and specific object of legal regulation,
method of legal regulation,
system and system coherence of legal norms,
social acceptance of the branch.
After an examination of the analysis and a comparison of the views of tax law as
an independent legal branch in the above stated four countries (the Visegrad
countries), the findings will be synthesized and the hypothesis will be confirmed
or refuted.
The article forms a part of the grant project no. MUNI/A/0823/2012 “System
Coherence of Financial (and Tax) Law Norms” provided by Masaryk University.
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2 The Object of Tax Law
The object of tax law is the social relationships that, in addition to taxes sensu
stricto, also deal with charges, customs duties and similar levies, provided that
they are paid to public funds (the state budget, local self-government budgets,
state funds, etc.). These relationships are created, implemented and expire in the
process of creating public monetary funds. The primary purpose of regulation is to
ensure a material basis for subsequent provision of public goods by means of
filling up public funds. It is possible to determine the amount of the funds that are
the object of such relationships (the amount of taxes, fees, etc.).
There is no question that these relationships will always be of an economic nature.
The contents, creation, interpretation and application of legal norms are also
influenced by the type of economy in the given country and the economic model
resulting from the government’s economic policies. Take for instance the changes
after 1989, which led to a completely new tax system in Central and Eastern
European countries, and to a lesser degree for instance the changes in government
coalitions after parliamentary votes (e.g. introducing a linear percentage rate on
income tax for natural persons and the gradual cancellation of inheritance tax and
gift tax).
Tax law relationships are monetary relationships sui generis, where the object of
such relationships is public finances, i.e. receivables of public funds against tax
entities and other entities in a similar position. These relationships are not
monetary relationships under private finances, although pursuant to the law certain
relationships from the category of private finances can represent financial facts
establishing the creation, change or expiration of a monetary relationship falling
under the category of tax law relationships, i.e. the object of tax law. One example
is the payment of wages by the employer to the employee, which takes place in the
process of performing the obligation of their private (private law, labor law)
relationship by reallocating private monies between private monetary funds (funds
for meeting private needs). This fact, however, is a financial fact establishing the
employee’s obligation to permit a deduction in wages by the mandatory amount
transferred by the employer to certain public funds, specifically in the form of
income tax (a personal income tax advance payments), insurance premiums
(social, pension, health) and other potential contributions stipulated by law (e.g.
contribution to the state employment policy). The employer is also obliged to pay
the levy essentially in the form of payroll taxes (the part of the employee’s
insurance premiums covered by the employer) or insurance premiums (e.g. the
legally required accident insurance for employees), etc.
A tax law relationship must be considered a relationship with no equivalent and no
direct counterperformance by the public monetary fund or fund administrator to
the entity fulfilling its tax law obligation (e.g. paying taxes).
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We can also state that performances under these relationships are not only nonequivalent,
but irrecoverable. For instance, a tax is not a loan to the state or a
conditional payment returnable in case of failure to perform the obligations on the
part of the state (failure to fulfill the government program).
The above mentioned principles make it clear that the relationships in question are
power relationships: one of the participants is endowed by law with superior
power, namely with the power to force performance of obligations using the threat
of sanction or by actually enforcing the sanction from and within the confines of
the law, and the other participant is obliged by law to fulfill the obligation
stipulated by law, permit verification of the performance of the participant’s
obligation, and submit to potential sanctions, all insofar as the superior entity is
proceeding within the confines of the authorizations, resources and procedures
stipulated by law. Unlike the object of branches of law classified under private
law, where these social relationships can be classified as horizontal (“peer-topeer”)
relationships, the relationships regulated by tax law belong to the category
of public law relationships, i.e. relationships between entities on an unequal
footing – vertical relationships, and considering the method of regulation, also
potentially diagonal relationships.
3 Method of Legal Regulation of Tax Law
The power imbalance inherent in the social relationships regulated by tax law
makes it clear that tax law will also use the regulation method with the
characteristic features customary for the branches of law that we classify under the
heading of public law within the traditional continental European concept of the
system of law (legal culture) established on the basis of Roman law. In addition to
tax law, this category certainly also includes financial law, constitutional law,
administrative law, criminal law, etc.
Tax law is related to financial law and administrative law not just by their
historical connection but also by the method of legal regulation used. Based on its
characterization according to the criteria for being considered an independent
branch of law, administrative law is distinguished by the application of a type of
public law method, which is the administrative law regulation method. This
method is based on the effect of public authorities on the recipients of public
authority, in particular by means of the norms enforceable by public authorities
and contained in normative administrative acts, i.e. bylaws and ordinances issued
by public authorities authorized in and for the implementation of the law and
within the limits stipulated by law (sub-statutory regulations), as well as by means
of individual administrative acts – decisions of the public authorities authorized by
law to make such decisions in the specific administrative matter. Just as public
administration is gradually absorbing the client model into its operations, where its
activities fit the image of real public service in place of the more or less repressive
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authoritarian police administration of a traditional bureaucratic nature, the
administrative law method is also gradually incorporating new elements closer to
private law methods (the contract). The method applied in financial law is
essentially a modified version of the administrative law method, namely with
regard to the actions of public administration authorities and in relationships
regulated by financial law. Statistics can demonstrate that there is a lower level of
applying sub-statutory regulations in financial law regulation than in
administrative law; in other words the law gives public administration authorities
less space to carry it out. Public administration authorities apply economic
instruments to a greater extent in this area to affect recipients (central bank interest
rates, mandatory deposit in a state of emergency, etc.). Certain private law
elements also modify the administrative law method, such as agreeing on the
conditions for use of grant funds, applying the principle of competition in using
public funds in public procurement, etc. Certain administrative activities are also
delegated to private law entities, such as monitoring fulfillment of the obligations
stipulated by the Foreign Exchange Act to the client in carrying out currency
exchange transactions, where this administrative activity is delegated to the
currency exchange point (a bank or other entity with a currency exchange license).
A similar situation prevails in tax law. Very few sub-statutory regulations exist in
this area; the vast majority of legal regulations in the area of tax law take the form
of an Act, primarily with regard to such a requirement stipulated in the
Constitution or a similar document (e.g. in the Czech Republic such rule is
contained in the Charter of Fundamental Rights and Basic Freedoms, which forms
part of the constitutional system along with the Constitution, in Poland it is
established in Article 216(1) of the Constitution, similarly in Slovakia in Article
58(3) of the Constitution).1
Of the types of sub-statutory regulations, the most
significant in the Czech Republic are the generally binding ordinances (vyhlášky,
similar to the differently-named sub-statutory regulations in Slovakia, Poland and
Hungary), which municipalities (or other local self-government units) use to
“complete” the legal regulation of property taxation and local taxes (fees). This
area also contains many economic instruments public administration authorities
can use to affect recipients. These instruments generally include, for example, tax
credits and other corrective elements, tax holidays, etc. Specific to this area is the
very frequent use of private law elements to modify the traditional administrative
law method of regulation. As an example, take the options of negotiating taxes,
postponing taxes, payment calendars, etc. We can even find typical private law
relationships in tax law, such as the relationship of an employer who pays wages
(salary) to an employee: their relationship is without doubt a labor law
relationship, although the employer is obliged to deduct a personal income tax
advance payment as well as insurance premiums and other levies stipulated by law
from the employee’s wages and the employee is obliged to permit such conduct.
The authority to withhold tax is thus delegated from the state to a private law
entity. Many analogous relationships can be found in tax law (a bank withholds
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tax on interest accrued, a joint stock company withholds tax on dividends, a seller
collects VAT from a buyer along with the sale price, etc.).
What is the most specific to tax law, however, is a principle known as selfapplication.
In tax proceedings (unlike in administrative or financial law) the
administrative negotiations do not take place between the administrative authority
(tax administrator) and (tax) entity, but rather primarily assume the knowledge and
orientation of the tax entity in the area of tax law. The taxpayer applies tax law
norms to itself by determining the tax base using its own knowledge, uses the
relevant tax rate for itself, and applies the corrective elements for itself. The
taxpayer then delivers the completed tax return to the tax administrator, which
assesses the tax tacitly, i.e. implicitly, provided that it has no reservations
regarding the correctness and completeness of such return. In most cases,
therefore, there is no interaction at all between the tax administrator and taxpayer.
On the basis of the above mentioned facts we can state that tax law relationships
certainly have a public law nature, which is a reflection of the priorities of the
public interest in the given area. The mandatory nature is moderated, however, in
certain instances with an element of choice (voluntary VAT payer, method of
depreciation, lump sum expenditures for income taxes). Considering the above
stated specifics of the tax law regulation method, the regulation method can be
defined as an administrative law method modified to include private law elements
with the use of self-application.
4 System Coherence of Tax Law Norms
System coherence represents the level of interconnectedness of the norms in the
given legislative area, i.e. to what extent the norms in such area are linked to each
other as compared to those in other branches of law. A branch of law is not an
island to itself in the sea of legislation; the norms of one branch have a certain
relationship (even if not as strong) to the norms in another branch. The closest
links are those between norms regulating the same category of social relationships
(e.g. the set of legal norms regulating social relationships involving personal
income tax on employment and emoluments), then those between norms
regulating relationships involving less specified objects (personal income tax),
then norms relating to both kinds of income tax (personal income tax and
corporate tax), and lastly tax law norms – norms relating to all taxes (primarily the
general institutions, policies and principles valid for tax law as a whole). Outside
of tax law the closeness of the links will depend on how much the legislation
overlaps (e.g. to what extent the laws refer to each other). A greater level of
connection should exist between tax law and the other branches of public law.
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The system coherence of tax law norms must be divided into external system
coherence, expressing the relationship to other branches of legislation, and internal
system coherence, i.e. within the system of tax law.
From the standpoint of the relationship to other areas of the law, first
consideration should be given to constitutional law. As in other areas of law, the
constitutions of Central and Eastern European countries generally, fundamentally
regulate certain institutions, institutes and policies relating exclusively to tax law
and also, of course, general policies and principles that apply to all legislation.
Constitutions usually address issues of the operation of fiscal federalism and
guaranteeing the economic autonomy of public self-administration authorities.2
The Constitution of the Czech Republic, for example, establishes the basic
principles of the economic basis of local self-government units or the state budget
and the Character of Fundamental Rights and Basic Freedoms establishes the
constitutional principle for modification and enforcement of tax and fee
obligations. According to Mrkývka, this can be considered a constitutional
minimum, since the Constitutions of the other Central European countries also
regulate other “above-standard” aspects of tax law (Mrkývka, 2012: 114-125).
For instance, the Polish Constitution emphasizes among other things the need for
statutory regulation to determine the method of allocation and redistribution of the
financial resources intended for public purposes, and along the same lines the
Slovak Constitution stipulates that special-purpose government funds connected to
the state budget may be only established in the form of an Act (Polish Constitution
art. 216(1), Slovak Constitution art. 58(3)). Unlike the Czech Constitution, the
Hungarian Constitution explicitly grants local self-government units the right to
modify taxes via local government actions pursuant to the law, and the Lithuanian
Constitution even explicitly requires municipalities to cover expenses from their
own budgets (Hungarian Constitution art. 44a, Lithuanian Constitution art. 121).
The Slovak Constitution applies the institute of tax federalism in Article 59(1),
which divides charges into state and local charges. It is interesting to observe the
constitutionally established obligations of natural and legal persons as well: in
Hungary each person must contribute to covering public expenses according to
his/her/its income and property means (Hungarian Constitution art. 70i in
Klokočka, 2005), and in Poland there is a similar obligation to contribute to public
expenditures and fulfill obligations, in particular the obligation to pay taxes
(Polish Constitution art. 84).
Tax law is most often joined to financial law; many authors (e.g. Mrkývka, 2012:
167, Boháč, 2006: 6-10) classify tax law under the fiscal section of financial law
(the public revenue section – for more detail see the section dedicated to social
acceptance of tax law). These branches use a similar method of legal regulation;
taxes are the income of public funds, many submissions are subject to payment of
an administrative fee, an administrative fee is de facto a tax and therefore an
object of interest for tax law.
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The same statement regarding the regulation method also applies to administrative
law. The creation, existence or expiration of administrative law relationships, or
potentially facts contingent upon them, can be a financial circumstance that is a
prerequisite for the creation, implementation or expiration of a tax law
relationship. For example, commencing administrative proceedings is subject to
payment of an administrative fee; breach of the administrative law obligations can
mean fulfillment of the legally stipulated constituent elements of an administrative
offense, which can be subject to a penalty (fine, etc.) from the administrative
authority, such penalty is public monetary fund revenue and thus becomes a tax
sensu largo and is subject to the same administrative and procedural norms as a
tax owed. Tax proceedings are no more than a type of administrative proceedings,
subject to the general policies and principles of administrative procedural law.
Criminal law contains the constituent elements of criminal offenses related to
breach of tax law norms, thereby fulfilling the penalty component of tax law
norms.
Environmental law is related to tax law, in particular through the sanctions, fees,
contributions and payments related to the environment, which are public fund
revenue.
With reference to procedural law norms we should also mention civil procedural
law, which is bound to financial law on the one hand by court fees (taxes sensu
largo) and on the other by administrative justice, i.e. reviewing tax law decisions
by the court as one of the means of monitoring legality in public administration.
The link to private law is seemingly less close, although tax law norms do use
some institutions and institutes regulated by the norms of civil law, commercial
law, family law, or labor law, including the definitions regulated therein. If tax
law operates with the concept of “natural person” or “legal person”, it does so
using the definition of “person” set by civil substantive law; if tax law applies the
rights and obligations to, for instance, a general partnership or other company or
to a cooperative, shareholders, partners, executive directors, cooperative members,
etc., it defines these entities using commercial law norms. As indicated above in
the example regarding the relationship of wages to taxes, at a certain moment
stipulated by financial law some relationships governed by the norms of civil law,
commercial law or labor law become a fact establishing the creation, change or
expiration of a tax law relationship. Thus a purchase agreement, provided that the
object of sale is real estate, generally heralds the creation of a tax law relationship.
A tax law relationship arises by implementation of the purchase agreement,
specifically by entry into the real estate cadaster or other similar records. The
entry takes effect retroactively as of the date of submitting the application for
entry (the date of establishing the relationship between the new owner and the
state with the object of such a relationship – real estate tax) and upon delivery of
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the agreement with its entry in the real estate cadaster marked (at which point the
seller or buyer enters into a tax law relationship with the state, i.e. the real estate
transfer tax). The process is similar in case of donations. In civil law inheritance
and passing it to the heirs is a legal fact establishing the obligation to pay
inheritance tax. The birth of a child is also a financial event with an impact on, for
instance, a tax relief on income tax for one of the parents. The formation or
dissolution of marriage and the formation, restriction, expansion, cancellation or
expiration of marital property is also a fact that is reflected to various degrees in
the existence of tax law relationships. The same applies to the area of labor law
relationships.
Tax law, like the entire legal system in the Czech Republic, is influenced by
international law, when in some cases international law norms regulate the social
relationships of the object of tax law. This is the case, for example, with
application of double tax avoidance agreements. A new and significant element is
the adoption of European standards and in some respects references to European
law norms or EU norms in national legislation.
Internal system coherence is expressed in the system configuration of tax law.
Internal system clarification is not only theoretical in value, but primarily practical
in the process of implementing and interpreting tax law norms. The tax law system
should be understood as the internal differentiation of tax law into comprehensive
collections or groups of tax law norms with regard to their content and the affinity
of the social relationships they regulate (Slovinský, 1992). This system is not
dogma, but is in its own way based on tradition, agreement and acceptance of tax
law theories just as in other disciplines. It is changeable, just as the object of tax
law and the law itself changes and develops. A classification system for tax law is
needed due to its lack of codification and most likely the reluctance to prepare a
general codification in the near future in all monitored states; there is therefore a
need for a certain orientation in the countless sources and individual norms. The
classification system for tax law is utilitarian and also reflects the concept of tax
law as a branch of law, a science, or an educational discipline, which is why we
can speak of the system of tax law as the system of one of the areas of national
legislation, but also as the system of tax law science and the system of teaching
the subject called “Tax Law”, in particular at law schools and university
economics departments. These systems are not strictly separated from each other,
so just as there is a natural connection between the different views of tax law,
there is also a certain level of connection between or merging of these system
configurations.
Like other branches of law, tax law can be divided into a general and specific
section. From a doctrinal and didactic perspective on tax law, the general section
is made up of general information regarding tax law and its object, norms and
relationships (Grúň, Králik, 1997). A review of tax law can gradually lead to the
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conclusion that although the general section of tax law is not codified, it does
contain certain institutes of a general nature which are completed in the individual
sections of tax law, as well as certain general principles applying to tax law as a
whole, which serve to create, implement and interpret it. To what extent this can
be formed into a coherent whole, using unified terminology, policies, and legal
institutes valid for all tax law relationships will depend on the further development
of tax law. These general issues could appear, for example, in existing regulations
of a more procedural nature as well as entirely new legislation, e.g. the Public
Finance Act, which would contain general institutes from the area of tax law as
well as financial law. Poland stands out from this standard framework for Central
and Eastern Europe with its Public Finance Act (ustawa z dnia 27 sierpnia 2009 r.
o finansach publicznych), which could provide an example for other states in this
regard. Tax law jurisprudence could also play a significant role in this process.
The specific section, labeled as substantive tax law, contains the substantive
legislation with regard to individual tax law relationships. Their regulation is split
between many different legal regulations. Nevertheless we can find a certain
organization system in the jumble of individual legal regulations and norms, based
on which the specific section of tax law is made up of the following sub-branches:
tax law (in the narrow sense) – traditional name for the set of legal norms
regulating public revenues from taxes (i.e. taxes sensu stricto), with these
norms determining the persons burdened with tax liability, the object, base,
and rate of the relevant levy and other structural elements of the tax,
charge law – sub-branch regulating public budget revenues from charges and
the structural elements thereof,
customs law – sub-branch in many ways similar to tax and charge law, but
regulating the most important accessorial public revenue, which is customs
duty. The question is, however, whether customs duty is different enough
from a tax to justify regulating it under an independent branch of law –
customs law.
Another set of norms within the tax law system is the relatively
comprehensive set of procedural law norms. Procedural tax law norms
regulate:
the procedural law position of entities in proceedings on the rights, legally
protected interests and obligations resulting for participants from substantive
tax law,
procedural law practices in decision-making processes before tax
administration authorities and legal and natural persons, if they were
entrusted by law or based on the law with making decisions on the rights,
legally protected interests and obligations of other entities resulting from
substantive tax law norms,
the practices of subordinate entities when implementing substantive tax law,
which do not involve proceedings before public authorities but procedures
the subject (e.g. subject of taxation – taxpayer, payor) applies to
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him/her/itself or the payor sets a legal obligation for the taxpayer on the basis
of substantive tax law (e.g. tax liability) using the prescribed technique (tax
technique), declares such fact in the prescribed manner to the superior entity
(authority), with this declaration having the same legal effect as a judgment
in legal proceedings, and carries out the declared obligation, again in the
prescribed manner (e.g. the apt Polish term “samowymiar”, which describes
this process sui generis). Unlike the processes set forth in the first two points,
which are an authoritative application of substantive tax law, in this case the
authoritative component is secondary, used only in the event of the
subordinate entity’s failure in the primary “self-application” of the relevant
norms of substantive tax law. This method of implementing substantive tax
law norms resulting in the above mentioned declaration of obligation (e.g. in
the form of a tax return) is not identical to direct implementation of the
norms of tax law, which lacks such an outlet,
the legislative process in creating, passing and monitoring fulfillment of
public budgets pursuant to the financial (tax) documents.
With regard to the processes of applying substantive tax law, we can distinguish
primarily the following:
tax proceedings,
administrative proceedings before the tax administrator, when the object of
the proceedings is not the tax itself but another obligation of the taxpayer,
the “self-application” process (see above).
Another specific sub-system of procedural law will be judicial tax law (e.g.
Nováková, Foltas in Miškinis, Ruśkowski, 2004) regulating the decision-making
processes in matters of substantive tax law in court, in particular in administrative
justice and judicial enforcement of tax administration decisions.
Public administration authorities clearly have an active presence in tax-related
activities. The norms of an administrative law nature regulating the organization
and legal position of tax administration authorities do not comprise a unified subbranch
of substantive administrative law or a unified section of tax law, although
we can entertain the idea of a possible administrative tax law, made up of the set
of legal norms regulating public administration in the area of taxes and related
activities. This would involve, in particular, regulating tax administration
authorities, i.e. public administration authorities, in the area of public revenues
from taxes and charges, as well as regulating customs administration, such as
public administration of customs and customs duties, etc. The literature also
mentions the term organizational financial (tax) law (e.g. Spáčil, 1970: 72).
The deliberate focusing of a certain section of tax law norms (including tax
administration norms) on defining the foundations and consequences of liability
for breach of tax law norms, i.e. the set of such norms of a protective nature, can
be described jointly as criminal tax law (e.g. Šramková in Miškinis, Ruśkowski,
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2004). For instance, in Poland this section is often reflected in an independent
code, which regulates the liability system of what we would consider tax
administration and financial administration offenses as well as criminal offenses
(Prusak, 1996). In the case of the Czech Republic, the legal regulation of criminal
tax law is contained in the Tax Code and Criminal Code, as well as to a lesser
extent in the individual, predominantly substantive, tax regulations (e.g. in the Act
on Local Charges).
5 Social Acceptance of Tax Law
With regard to the fourth criterion for being considered an independent branch,
social acceptance, it will take some time for this criterion to be met in Central and
Eastern European countries. Tax law has experienced a very long evolution and it
could almost be said that this is one of the first, if not the very first, branch of law.
Even the professional literature states that law came into being along with the first
nation-states. In order for these states to function, they needed substantial financial
resources (taxes), which they collected – whether by violent or non-violent means
– from the people living in the given territory. However, most Central European
authors (e.g. from Poland Kośikowski, Ruśkowski, Borodo, from the Czech
Republic Bakeš, Karfíková, Marková, Mrkývka) lean more toward the opinion
that tax law is a sub-branch of the fiscal section of financial law.
Some Polish scholars, however, take opposing positions, from the perspective of
this article more relevant. Mastalski, for instance, defines tax law using criteria for
being considered an independent branch, similar to the approach in this article. He
considers the object of tax law regulation to be the specific social relationships
belonging to broadly conceived economic phenomena. They are social
relationships arising from the division of funds between society, represented by
the state, and individuals. Social relationships regulated by tax law are created,
implemented and expire in the background of the transfer of funds from
economically active individuals to the state. Such transfers do not produce
immediate, direct counterperformance on the part of the recipient (Mastalski,
1995: 30-32). Other Polish authors publishing in support of an independent tax
law include Etel, Brzeziński, Małecki, Gomułowicz and others (e.g. Etel, 2010,
Gomułowicz, Małecki, 2010, Brzeziński, 2008).
The strongest voice in favor of an independent tax law in Slovakia is Babčák. In
his opinion, the object of tax law is those socioeconomic relationships pertaining
to the implementation of tax authorizations and the fulfillment of tax obligations
by the participants in such relationships. The object of tax law is first and foremost
a tax obligation, i.e. an obligation expressed by paying taxes. From the perspective
of systemizing tax law, Babčák distinguishes tax authorizations and obligations of
a monetary nature from tax authorizations and obligations of a non-monetary
nature (Babčák, 2008: 49).
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M. Radvan: Tax Law as an Independent Branch of Law in Central and Eastern
European Countries
825
Financial and tax law science in Hungary has gradually taken on a conception
similar to that of Babčák and Małecki. The independence of tax law is argued in
particular by the application of the theory of obligation in the tax relationship and
also the specific construction of tax norms, specific manner of liability and lastly
the special procedure. Tax law is understood as an extension of financial law
(Főldes, 2001: 75).
It is clear that, especially in Poland and Hungary, tax law is more and more
perceived as an independent branch of law, which is apparent not just in the
opinions of individual authors, but also in the number of publications on this topic,
separate instruction on tax law at law schools, establishment of specific courses
focused on tax law at independent tax law departments, etc. Thanks to Babčák’s
initiative, Slovakia has also made great strides in the perception of tax law as an
independent branch of law. The Czech Republic has the least developed view of
tax law from this perspective, as only the author of this article supports the
independence of tax law. Only the hard work of scholars who believe in the
autonomy of tax law can bring about the fulfillment of the final criterion for being
considered an independent branch of law: social acceptance of tax law as an
academic discipline.
6 Conclusion
As the text above makes clear, tax law has a very specific object of regulation,
which is different from the other sub-branches of financial law, is characterized by
its own tax regulation method, certainly has its own internal system, and operates
with reference to the norms stipulated by other branches of law. If we add to these
aspects the tradition and significance of tax law norms and especially the purpose
of tax law (pursuant to the Constitutions of the Czech Republic, Poland, Slovakia
and Hungary, international commitments and the attempt to achieve the most
efficient approximation of law in order to ensure the operation and stability of the
economic system of every state, including its compatibility with the economic
system applied in EU member states in the form of a sufficient material basis for
the provision of those goods whose production the public sector has reserved for
itself or must provide by law), it is obvious that tax law merits social acceptance,
which will also fulfill the final criterion for being considered an independent
branch of law, giving tax law the status of an independent branch of law.
These conclusions are also supported by the experience of experts from the USA
and Western Europe,3
where tax law science has a long tradition and the question
is hardly even posed whether tax law can be considered an independent branch of
law. However, as the deliberations regarding the social acceptance of tax law
make clear, this is not yet the case in Central and Eastern European countries. The
hypothesis stated in the introduction to this article has therefore not been
confirmed and tax law is thus not considered an independent branch of law in
Central and Eastern European countries. I feel confident, however, that this social
826 LEX LOCALIS - JOURNAL OF LOCAL SELF-GOVERNMENT
M. Radvan: Tax Law as an Independent Branch of Law in Central and Eastern
European Countries
acceptance of tax law will come about in the near future and tax law will finally be
acknowledged as a legitimate and independent branch of law in this region, just as
it is elsewhere in the world. I believe that this article can play its part in the
process.
Notes
1
For more detail see e.g. Mrkývka, 2012: 114-115.
2
For more on this topic, see e.g. Vojinović, Mikac, Oplotnik, 2013, Bronic, Franić (2014),
Delgado (2012).
3
E.g. Karen Brown (George Washington University, USA), Tracy A. Kaye (Seton Hall
University, USA), staff of the Institute for Austrian and International Taxlaw (Michael
Lang, Alexander Rust, Josef Schuch, Claus Staringer, Pasquale Pistone, Alfred Storck,
Jeffrey Owens), members of European Association of Tax Law Professors, Paul L. Caron
(Pepperdine University, USA), etc.
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