A tax penalty as a punishment? Legal aspects of the concurrence of tax and criminal sanctions

Abstract

Tax crime in the Czech Republic has become increasingly important in recent years. This article focuses on an unintended consequence of tax crime, namely the issue of double jeopardy. In the Czech legal system, tax proceedings and criminal proceedings are conducted separately. The aim of this article is to determine whether it is possible to impose a tax penalty and a penalty in criminal proceedings at the same time without violating the ne bis in idem principle. The hypothesis assumes that the concurrence of these sanctions is possible if the penalty is not considered as a punishment in the sense of criminal law. For these purposes, the legal framework that defines tax and criminal proceedings in the Czech Republic is first analysed. Subsequently, the conditions under which it is possible to conduct these proceedings in the same case are identified, using an analysis of the case law of European and domestic courts. The authors conclude that tax penalties are punitive in nature and therefore the sanctions imposed must be considered. However, the current legal framework in the Czech Republic makes this very difficult, as the tax administrator is not granted discretionary powers when imposing penalties. Therefore, the following solutions are proposed: 1) change the legislation and allow discretion in imposing penalties, 2) do not impose penalties at all if a punishment has already been imposed in criminal proceedings, 3) merge the two proceedings and impose one sanction.