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The RCC has repeatedly postponed a decision in this case. On June 17, the Honorable Chamber of Deputies voted to reform and complement Law 227/2015 of the Tax Code, which aims to regulate the establishment of an income tax and age limit benefits.
According to an amendment, pensions with a value of up to 2,000 lei inclusive are not taxed, those between 2,000 and 7,000 are taxed at 10%, and pensions with a value greater than 7,001 lei are taxed at 85% for whatever exceeds This quantity. .
The amendment voted by the Chamber of Deputies was appealed to the Constitutional Court by the Superior Court of Cassation and Justice and the Ombudsman’s Office.
Thus, on June 18, the United Sections of the Superior Court of Cassation and Justice decided to refer to the Constitutional Court the law that establishes a new system of taxation of retirement pensions.
The Supreme Court alleges that the Law that modifies and completes Law 227/2015 of the Fiscal Code is unconstitutional as a whole, for violating the provisions of various articles of the Constitution.
The ICCJ affirms in the decision of the CCI that one of the five principles of taxation regulated by the Fiscal Code refers to “tax justice or fiscal equity”, which “ensures that the tax burden of each taxpayer is established on the basis of power tax, respectively according to the size of their income or property “.
“The fair and equitable solution of the tax burden constitutes one of the components of the rule of law, as defined by the Romanian State in article 1, paragraph 3, of the Constitution. (…) In the jurisprudence of the Constitutional Court It has been consistently argued that the State has a wide margin of appreciation in the establishment of fiscal policy and it is the exclusive competence of the legislator to establish the amount of taxes and grant exemptions or exemptions from these obligations in favor of certain categories of taxpayers and certain deadlines. , subject to compliance with Article 56 of the Constitution on the fair liquidation of tax burdens, ”the sentence reads.
The Supreme Court observes that the law that is the subject of the notification establishes the income tax for pensions and old-age benefits established on the basis of special laws, establishing the legislator “a new tax regime applicable only to certain income, namely, income for pensions and / or old-age benefits received on the basis of special laws / statutes “.
“The law establishes an income tax for pensions regulated by special laws that is different from income tax and accumulates with the latter, which means that both income tax, which is subject to taxation according to the criticized law , the tax is subject to both. “It follows that the pensions covered by the law are subject to double taxation, contrary to the principle of non-discrimination and the principle of fair and equitable taxation,” affirms the ICCJ.
According to the Supreme Court, the new “tax” is not only discriminatory and represents a “disguised” income tax, but is practically calculated on the net pension income, after deducting the income tax from the gross pension. , which would result in a certain level, a tax rate calculated on the gross pension of 95%.
“Under these conditions, due to the high amount, the taxation measure is a real confiscation and is likely to affect the very substance of the law. The option promoted by the law in question is a subterfuge that damages the very substance of the law. pension, “he said. remission.
The ICCJ also notes that, in relation to the 7,000 lei of the amount not subject to the criticized tax, the taxation is directed at a limited category of taxpayers who obtain income from pensions and old-age benefits under the special laws.
The Supreme Court also accuses the violation of the principle of clarity, predictability and predictability of the law, the principle of independence of the judges, as well as the violation of the principles of art. 1 of Protocol no. 1 the ECHR.
Another argument is that the notified law was first submitted to debate and adoption by the Senate, with the Chamber of Deputies being the decision-making body, which contradicts the constitutional norms that establish another procedure in terms of regulations on the condition of judges and prosecutors .
