26 July 2010
Assessments of the Chamber of Commerce fee are illegal, says the Court
In a decision of 17 June 2010 about the Chamber of Commerce fee, the Administrative Court has considered that the assessments sent to tax payers by the Chamber of Commerce and which deal with the Chamber of Commerce fee are illegal. The Court considered that Grand-Ducal Regulation (“GDR”) of 21 December 2007, which purports to provide a legal basis for the notification of these assessments, is illegal, as the procedure required for this Regulation to become effective has not been followed.
In a decision of October 24, 2007, the Luxembourg Administrative Tribunal considered that the notice of assessment determining the amount of the Chamber of Commerce fee was illegal as the GDR, which was supposed to deal with the procedure of levying the fee provided for by the law of 4 April 1924, had never been taken. As a consequence, the Tribunal considered that the Chamber of Commerce fee was not due. This decision was confirmed by the Administrative Court on 17 April 2008.
GDR of 21 December 2007 was adopted as a consequence of this case law, in order to provide the Chamber of Commerce with a legal basis to notify its assessments. The GDR was adopted and published without the State Council having been required, in a first step, to comment the draft GDR, since the Government considered that the procedure applicable in case of emergency had to be followed.
Decision of the Administrative Court of 17 June 2010
In a more recent case, the Administrative Court had to rule on assessments that were issued by the Chamber of Commerce after the above-mentioned GDR entered into force. The Court considered that the procedure in case of emergency was not applicable as there was no emergency as regards the adoption of the GDR, so that the State Council should have been required to comment on/approve the draft GDR prior for the GDR to be adopted and published. Since this did not happen, the GDR was considered as illegal and the assessments of the Chamber of Commerce as still having no legal basis.
Given this recent case law, tax payers may consider challenging the notices of assessment of the Chamber of Commerce fee to the extent, in principle, the assessments are not older than 3 months.
Tax payers who wish to challenge these assessments should act quickly since the legal uncertainty around this issue might disappear in the near future:
Draft law 5939 on the reorganization of the Chamber of Commerce, which was released back in October 2008, has been amended very shortly after the Court’s decision and the adoption process of the law should be finalized very soon: the draft law was voted by the Parliament on 15 July. The State Council required however a second vote, which will probably take place after the summer. Once the draft law will become law, a new grand-ducal regulation will probably clarify the procedure for notification of the Chamber of Commerce assessments so that any uncertainty regarding this issue will be removed.
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