Slovakia (SK)

Jurisdiction Overview

IDQuestionAnswer
158 *Are there no undue notification and appeal rights against bank information exchange on request? Yes, but some problems.
 Data Date: 2014

Notes

 
While section B2 (regarding notification and appeal rights) of Slovakia's Global Forum peer review is found to be in place (GF 2014: 76), we consider that there are some concerns. First, in 2011 the Global Forum described that the information holder may appeal (in three instances) to any decision taken by the tax authorities, including the collection of information. During the appeal process, the tax proceeding is deferred and no timeline for the resolution of appeals are prescribed (GF 2011: 54-55). However, in 2014 the Global Forum seems to describe a different situation: " Under the Tax Code, parties to a tax proceeding cannot appeal information gathering measures taken by the financial administration to obtain the requested information. The parties can, however, appeal a decision regarding tax assessment. Such a decision may be based on information obtained via the use of information gathering powers but in the absence of such a decision there can be no appeal. This means collection of information and its provision to the requesting jurisdiction cannot be appealed unless the Slovak tax authorities have issued a decision regarding tax assessment prior to providing the information to the requesting jurisdiction" (GF 2014: 75-76). It is not clear why the Global Forum now describes a different situation since no legal amendments have been described.
 
In addition, the Global Forum now describes a problem with notification to the taxpayer and access to the request of information: "Although information gathering powers or provision of information cannot be appealed as such the taxpayer has the right to inspect his/her own tax file" (ibid.: 76). The Global Forum describes what this inspection entails: "In the context of a receipt of a request from an EOI partner jurisdiction, the letter of request is placed in the tax file of the taxpayer who has the requested information in his/her possession or control. For the purposes of section 23 the information holder is regarded as the taxpayer concerned. As such, the taxpayer has the right to inspect the file and gain access to the request. This means that information provided by the requesting jurisdiction (including the EOI request itself) can be disclosed to the taxpayer after the requested information has been provided, irrespective of whether a tax procedure has been launched in Slovakia (which is the stage when the taxpayer can exercise his appeal rights under Slovak law). Further, there are no provisions that would ensure that the EOI request itself is not disclosed to the taxpayer after it has been exchanged if the requesting jurisdiction requests that it should not be disclosed" (ibid.: 91-92).
 
Disclosing the request to a taxpayer or information holder even when the requesting jurisdiction suggested otherwise could affect the investigation since the taxpayer could be tipped off so that he closes the account, takes the money away or starts re-arranging his/her illegal activities before any legal action takes place.

Sources

GF 2012: para. 167; GF 2014: 75-76, 91-92