Recovery of Disputed Tax Claims

Tax-levying jurisdictions have to grapple with the tension between affording taxpayers a right to effective remedies and the revenue authority’s responsibility to efficiently and effectively collect taxes. This article shows that, in the main, jurisdictions tend to follow a rule-exception approach in terms whereof they deviate from their stance on whether or not disputed tax claims should be recovered pending the adjudication of the dispute in certain instances. This ensures proportionality to ensure that appropriate means are used to obtain policy objectives. Nonetheless, some jurisdictions apply the principle of “solve et repete”, in terms whereof taxpayers cannot challenge the assessment before they have paid at least part of the assessed amount. This is devoid of any proportionality and highly questionable from a fundamental rights perspective. This article further considers the cross-border recovery of disputed tax claims and points out that the requesting tax authority should thoroughly examine the grounds for taking recovery or precautionary measures in the form of mutual assistance while the tax claim is still disputed. It must set out its considerations in its request so that the requested tax authority can assess whether action on a disputed claim is compatible with the public policy of the requested state. In that regard, the justification of a request to enforce a disputed claim is of high legal relevance for the requested tax authority and, if it is missing, the assistance has to be denied.