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After clarifying the decision of the Constitutional Court, here are the interpretations of the jurists regarding the return of money to freelancers who have prepaid the tax without purpose
2024-08-02 07:52:42 / AKTUALITET
With the full disclosure of the decision of the Constitutional Court on the partial repeal of the law on income tax, by not applying the 15% tax rate for professional service providers with income up to 14 million lek per year, the situation still remains unclear as those who have paid will be dealt with.
Some of the businesses have prepaid the installment of the obligation calculated according to the declaration of income and expenses for the year 2023.
Decision no. 52 dated 27.06.2024
The tax administration, even with the full disclosure of the decision of the Constitutional Court, still does not have a clear idea of how it will act in this situation, as it claims that decision-making does not belong to it.
Taking into consideration the full disclosure of the decision of the Constitutional Court, the interpretations of the jurists are different on how to proceed for the return of an amount paid without purpose.
While everyone unanimously considers the prepaid amount an obligation to return, with the entry into force of the Constitutional Court's decision.
Lawyer Aigest Milo, quite well versed in the court case for free professions, as the legal representative of the lawsuit of IKM and IEKA, says that the decision of the Constitutional Court already has the force of law, since the article regulating the tax for free professions was declared unconstitutional.
"So how will the action be taken to return the money to those taxpayers who have prepaid the tax, the situation is very clear legally for the tax administration.
If the law recognizes it as a credit surplus, since it is not clear if this is recognized as a credit surplus, in the law "On Tax Procedures" it is determined that through a request from the taxpayer for tax obligations paid in excess or refunded in cases where he is self-employed and has no other obligations to pay or are recognized as paid obligations for other obligations. Issuing an instruction from the Minister of Finance would only speed up the procedure for the return of the paid obligation, so it is not completely necessary", he asserts.
Lawyer Lulzim Alushaj, at the same time the initiator of the mass lawsuit signed by 400 accountants filed in the Constitutional Court for the repeal of the "Income Tax" law, said that the prepayments of freelancers cannot be recognized as income in the budget, after the decision of the Constitutional Court for the repeal of Article 69.
Alushaj says that this obligation should be returned to the subjects in the form of a refund or recognized as an amount paid for other obligations.
"But this procedure must be determined by a special act from the general director of taxes, the institution that collected this income which cannot go to the budget, as it was collected without purpose and must be returned to the taxpayers. or by act of the Minister of Finance. Taxpayers, since they are not the subject of taxation, cannot submit a request for reimbursement or to pass the amount paid on account of other obligations. So the pre-paid obligation is not recognized as a credit surplus, given that these entities do not pay income tax", underlines lawyer Alushaj.
For some of the lawyers and accountants, the prepaid installments will appear as a credit balance on March 31, 2025, the period in which the statement of income and expenses is submitted, while the tax will be zero.
Lawyer Saimir Laçej explains that the legislation recognizes only the credit balance, while the way to proceed for the recovery of prepaid money, such as through tax reimbursement or their recognition for payment of other obligations, it is necessary to draw up an instruction or VKM .
Even Auditor Julian Saraçi earlier called it an atypical legal situation and it is still not possible to reach a conclusion on how to act, but there are several legal alternatives for the return of payments.
According to him, the Ministry of Finance and Economy in accordance with Article 75 of Law No. 9920 "On tax procedures" can issue an Instruction for the return of taxes paid.
What does the law "On tax procedures" provide for overpaid tax?
Article 75 Overpaid tax liabilities
When the amount of tax liability paid is greater than the amount of tax assessed in the tax assessment notice, the tax administration passes the amount paid in excess on account of other tax liabilities, unpaid by the taxpayer. After that, with the written approval of the taxpayer, the remaining amount, if any: a) is refunded automatically, within 30 calendar days from the date of the payment of the overpaid amount; b) is passed on account of the taxpayer's future tax obligations.
Actions for amounts paid in excess of tax obligations are recorded in the taxpayer's file. 3. Compensation from the credit balance of tax liabilities within each tax, with the exception of social and health insurance contributions, is performed automatically by the computer system. (Amended by Law 97/2018, dated 03.12.2018. Published in the Official Gazette no. 187, dated 28.12.2018)
In special cases, the amounts of taxes and taxes to be paid or overpaid to the tax administration or the customs administration can be offset against each other. The minister responsible for finance determines with instructions the special cases, procedures and criteria for the implementation of this point. (Added by Law No. 83/2019. Published in Official Gazette No. 184, dated 31.12.2019)./ Monitor
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