In my brief contribution I would like to scrutinize two aspects of the role of handwriting and document expert in taxation. First I would like to focus on the importance of the natural person's signature in handing in the tax return.
1. The tax return form is 'in the widest sense the statement of the taxpayer - rarely of anyone else, for instance employer - for the tax authorities written in a prescribed form'[1]. This taxation act is the term of fulfilling the tax obligation, and the base of the tax administration control at the same time that has an extremely important significance, mainly in the systems that use self-taxation. Without the tax return the work of the tax administration and the judgement of the taxpayer's activity would happen much more difficult and slowly. Therefore this statement is determined in detail by most of the countries through formal rules and orders in connection with the content. The inevitable and essential element of this statement is the identification of the taxpayer. This means the use of technical identifying code (tax number, tax mark, etc.) on one hand, and the requirement of the personal signature of the private individual on the other hand. Without the signature of the taxpayer, the tax return is invalid apart from every other term, so it is considered to be unperformed, and so it may establish the assessment of default sanction. In the Hungarian system the completion and handing in of the tax return could happen exclusively in written form through filling in the prescribed form. Now the less developed type of electronic tax return has appeared as well, in a subsidiary manner. With its help, the taxpayer may fill in and check his statement with the assistance of a computer program in a way approved by the tax authorities. However, this can not be sent directly to the tax administration by electronic way, due to the unregulation of the electronic signature. It has to
be printed out and signed by the private individual, then it might be posted or handed in personally to the revenue office. The electronic form only gives assistance to avoid the defective performance, but it does not replace the paper-based tax return. According to the Act on the Order of Hungarian Tax Administration (Act IXII./2003.), concordant with Paragraph (2) of Article 196 of the Hungarian Code of Civil Procedure, only the form signed by either the taxpayer or his representative, and the signed document completed of the automatic data carrier are considered to be a private document. Hungarian law excludes the use of reprint of the tax return as well as the photocopied form[2] . It can be declared that the effective Hungarian law does not attach legal consequences to the handing in of the document as an action, but it does tie certain legal consequences to the signature. The act itself does not regulate the question whether the machine-digital signature complies with the requirements, and produce this legal consequence. Based on the interpretation of the practice, it can be stated that only the hand-written signature effect the comprehensive approval of the authorities.
Since 2001 the Hungarian tax law provisions allow the tax consultant, tax adviser, etc. to countersign, therefore to take over a part of the liability related to the tax return, with the signature of the mentioned tax expert. However, this solution is not compulsory and with this signing the taxpayer does not exempt from legal liability, because the tax expert does not replace him or her entirely. The liability of the collaborator exists only in connection with the filling in errors, the taxpayer is still liable for the contents of his/her tax return, also with the condemnation of the expert. Studying the work of tax administration, it can be declared that the signature and the endorsement of the tax returns in fact cause not many questions. The taxpayers rarely plead with questioning the authenticity of their signature. One of the reasons for this may be perhaps that making the tax return means a particular, concrete and active series of acts and includes providing personal data and information related to and tightly connected to the taxpayer, and the exact defining of these data and information presumes the identity, therefore making senseless to dispute of the authenticity of the personal signature.
2. The signature has much more significance
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related to the legal acts that might indirectly influence the fulfilment of tax liability. An investigatory procedure, having caused a great professional stir, in which the opinion of the document experts determined the legal future of a public income of a sum of several billion HUF. In this case, members of the political and economic life were interwoven in a confused way. The action probably started with the occurrence that the contractors and companies, belonging to the opposition between 1995 and 1997 and since 1998 attached to the government, tried to get rid of the public debts accumulated by their undertakings in the way that they sold their companies to foreign nationals who were not known and did not have real activity or tax registration in Hungary. These companies did not perform economic activity after the change of the owners. The attempts made by the Hungarian tax authority to collect public debts remained unsuccessful, the undertakings had no income or company assets to be seized, their operation was not demonstrable, so the companies were deleted from the register. Due to this, the existing and provable public debts could not be collected, they were lost for the government, so indirectly the former owners who accumulated the debts were released from these obligations through the change of the owners. The 'new owners' disputed their involvement in the purchase of the companies and in the legal transaction, as well as the authenticity of their signatures, and they did not want to act on behalf of the companies as owners. The attention of the authorities, the media and the politicians were called to this issue by the fact that 13 of these companies were sold to Kaja Ibrahim, a Turkish national, unknown in Hungary, on the same day, in July 1995, then two years later two parts of the consortium were sold for a symbolic price to a Croatian entrepreneur called Josip Tot. In 1998 the Hungarian authorities initiated a proceeding against unidentified offender on the base of well-founded suspicion of document forgery. Later the charge widened with the factors in tax fraud and criminal bankruptcy. The situation got more difficult, because the involved political party was in governing position after having won the elections in 1998. The main aim of the investigation was to find out that the group of companies was really purchased by the two persons mentioned above, or the contract and the legal transactions were fictitious as well. So the exact identifying of the personality of the buyers was the key issue of the proceeding and in this played the document experts a significant role, who examined long the signatures of the buyers in the purchase agreements. During the investigation, one of the document experts found out that there were signatures on the agreements written by three persons on behalf of the Croatian Josip Tot. According to the statement made by Josip Tot, his passport had been stolen and he was not present in Hungary in the period in question. The identity of the unknown signatory persons, however, could not be found out. In regarding to this Csaba Schlecht, who conducted the transaction, said sardonically that he was not a document expert, so for him the difference between the signatures were not recognizable and this was irrelevant and, according to his point of view, it could not affect the validity of the transaction. The police could not find out the identity of the signatories and therefore the investigation had to be terminated.
After cooperating with the German authorities (writing samples were collected, witnesses were interrogated) document experts stated about the signatures belonging to Kaja Ibrahim on the purchase agreements of the 13 companies that they were most likely from Kaja Ibrahim. The charge of forgery of documents was dismissed and the proceedings terminated, because the active contribution of Kaja Ibrahim could not be proved due to the lack of evidence. Interesting and it shows the attitude of the Hungarian authorities to this complicated case, that in this period the Hungarian Constitutional Court stated in an other case that "the secret ground of the parties does not make the conclusion of contract invalid" (Constitutional Court, Kfv. III. 28. 530/1997.).[3]
So in this case the contract could not be declared invalid on the base of the unambiguous opinion of the document expert, and this resulted in the disappearance of public money. I would like to note as tax lawyer that the investigating body could have probed the tax avoiding character of the transaction.[4] According to the basic principles of the Act on the Order of Hungarian Tax Administration, the authorities could have concluded whether the transaction had any real economic purpose besides tax evasion, and whether this aim was achieved legally or not. In the judgement of this issue, however, not the opinion of the document expert may be the determinant. ■
NOTES
* This paper was made for the "Handwriting conference" Wroclaw 2004, Poland.
[1] Interpretation of the new tax law, HVG-ORAC, 2001. p. 478
[2] Dr. Andrea László: Tax proceedings and tax administration proceedings, BGF Budapest 2002. p. 67
[3] Dr. Zoltán Lomniczi: Financial justice, HVG-ORAC, 2001. pp. 66-69
[4] For a more detailed discussion, see chapter no. II. in 'Fraud and compliance in tax law' by Dr. Csaba Szilovics, Gondolat, Budapest 2003
Lábjegyzetek:
[1] The Author is an Associate professor.
Visszaugrás
