Decision U.no.134/2008

U.no.134/2008

On the basis of Articles 110 and 112 of the Constitution of the Republic of Macedonia and Article 70 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 17 December 2008, the Constitutional Court of the Republic of Macedonia took the following

DECISION

1. a) Article 29 of the Rulebook for issuing a document cash register receipt for cancelled transaction and for the functional and technical characteristics that fiscal cash registers and the integral automatic management system should possess (“Official Gazette of the Republic of Macedonia”, no.55/2001) adopted by the Minister of Finance, and

b) Article 1 paragraph 2, Article 2, Article 3 item 11, Article 4 items 5, 6, 7, 9 and 14, Article 5 and Article 6 of the Rulebook for changing and supplementing the Rulebook for issuing a document cash register receipt for cancelled transaction and for the functional and technical characteristics that fiscal cash registers and the integral automatic management system should possess (“Official Gazette of the Republic of Macedonia”, no.25/2008) adopted by the Minister of Finance,

ARE REPEALED.

2. This decision shall generate legal effects from the date of its publication in the “Official Gazette of the Republic of Macedonia”.

3. Upon the initiatives submitted by Dragan Koroveshovski, a lawyer from Skopje, the Constitutional Court of the Republic of Macedonia with its Resolution U.no.134/2008 of 29 October 2008 instigated proceedings for appraising the constitutionality and legality of the articles from the act noted in item 1 a) and b) of the present Decision, as there was a well-founded question raised before the Court regarding their harmony with the Constitution and the Law on Registration of Cash Payments.

4. At its session the Court found that Article 29 of the basic text of the Rulebook foresees that the fiscal logo is an identification mark printed on every fiscal receipt. The fiscal logo is formed with the symbols of a sun and the messages “BUY MACEDONIAN PRODUCTS”, “FOR OUR WELL-BEING”, “MADE IN MACEDONIA”. The fiscal logo has the following dimensions: 1.06 and 2.23 mm.

Under paragraph 2 of this article in the Rulebook, the form fiscal logo (FL-04) is an integral part of this rulebook, and paragraph 3 of the same article foresees that the fiscal logo and the registration number of the fiscal cash register are printed in the last line of the receipt if they are in one line.

Paragraph 4 of the same article in the Rulebook sets down that the fiscal logo and the registration number of the fiscal cash register may be on two consecutive different lines, the fiscal logo is printed on the one before the last, while the registration number is printed on the last line.

Article 1 paragraph 2 of the Rulebook for changing and supplementing the Rulebook for issuing a document cash register receipt for cancelled transaction and for the functional and technical characteristics that fiscal cash registers and the integral automatic management system should possess, envisages that in Article 7 paragraph (11) of the integral text of the Rulebook three new items 7, 8 and 9 are added after item 6, which read as follows:

“7. total turnover from Macedonian products;
8. total VAT from Macedonian products by each individual tax rate for the period of closure;
9. total VAT from Macedonian products for a period of closure”.

Under Article 2 of the same Rulebook, in Article 28 paragraph 1 of the basic text of the Rulebook three new items 8, 9 and 10 are added after item 7, which read as follows:

“8. total turnover realised from Macedonian products which shall be noted with the text “TURNOVER FROM MACEDONIAN PRODUCTS” and may not appear in any other line in the receipt;
9. the calculated tax from Macedonian products presented by tax receipts, along with the tax code, if used;
10. total amount of a tax from Macedonian products”.

Article 3 paragraph 1 of the Rulebook adds eight new items in Article 30 paragraph 2 of the basic text of the Rulebook, items 5, 6, 7, 8, 9, 10, 11 and 12. Item 11 foresees a total turnover realised from Macedonian products which should be presented with the text “TURNOVER FROM MACEDONIAN PRODUCTS” and may not appear on any other line in the receipt.

Under Article 4 of the Rulebook, in Article 31 of the integral text of the Rulebook paragraph (1) is changed and reads as follows:

“(1) The daily financial report shall contain the following compulsory elements:
1. Name and seat of the taxpayer,
2. Name and address of the facility for turnover of goods and services,
3. tax number,
4. tax number under which it is registered for the VAT,
5. total turnover from Macedonian products from the current day,
6. total tax from Macedonian products by each individual tax rate,
7. total tax from Macedonian products,
8. total turnover from the current day,
9. total turnover with a calculated tax, presented by tax rate,
10. total tax by each individual tax rate,
11. total tax,
12. the number of the last fiscal receipt issued prior closure,
13. total number of fiscal receipts entered in the fiscal memory,
14. number of cancelled receipts from domestic products and their total value from Macedonian products,
15. number of cancelled receipts and their total value,
16. number of closure,
17. number of performed resettings of the fiscal device after the last closure,
18. number of total resettings performed on the fiscal device from its fiscalisation to the last daily fiscal closure,
19. hour and date of printing, the hour should be presented in the format of 24 hours: hh-mm or hh:mm, the date should be presented in one of the following formats: dd/mm/yy or dd-mm-yy,
20. the fiscal protective mark (logo) and the registration number of the fiscal device,
21. with the space of at least two empty lines, non-fiscal data appear and end by printing out (“DAILY FINANCIAL REPORT”).

In Article 5 of the Rulebook, two new items 8 and 9 are added in Article 31-a paragraph 1 after item 7, which read as follows:

“8. amount of VAT from Macedonian products on the current day by tax rates,
9. total VAT from Macedonian products on the current day”.
Items 8 and 9 become items 10 and 11.

In Article 6 of the Rulebook, two new items 10 and 11 are added in Article 45 paragraph 3 after item 9, which read as follows:

“10. total daily tax from Macedonian products by tax rates,
11. total daily tax from Macedonian products”.
Items 10 and 11 become items 12 and 13”.

5. Under Article 8 paragraph 1 lines 3, 6 and 7 of the Constitution of the Republic of Macedonia, one of the fundamental values of the constitutional order of the Republic of Macedonia are the rule of law, the legal protection of property, and the freedom of the market and entrepreneurship.

Under Article 33 of the Constitution, everyone is obliged to pay tax and other public contributions, as well as to share in the discharge of public expenditure in a manner defined by law.

Under Article 51 paragraph 1 of the Constitution, in the Republic of Macedonia laws shall be in accordance with the Constitution and all other regulations in accordance with the Constitution and law.

Under Article 55 of the Constitution, the freedom of the market and entrepreneurship is guaranteed. The Republic ensures an equal legal position to all parties in the market. The Republic takes measures against monopolistic positions and monopolistic conduct on the market. The freedom of the market and entrepreneurship can be restricted by law only for reasons of the defence of the republic, protection of the natural and living environment or public health.

Under Article 51 paragraph 1 of the Law on the Organisation and Work of the Bodies of State Administration (“Official Gazette of the Republic of Macedonia”, no.58/2000), certain provisions of the laws and other regulations are defined and worked out by a rulebook, for the purposes of their enforcement.

The Law on Registering Cash Payments (“Official Gazette of the Republic of Macedonia”, nos.31/2001, 42/2003, 47/2003, 40/2004-correction, 70/2006, 126/2006 and 88/2008) regulates the introduction and the use of a fiscal system of equipment for registering cash payments (Article 1).

Pursuant to Article 2 of this Law, taxpayers having a turnover of goods and turnover of services for which payment is not made through a bank (hereinafter: cash payments) are obliged to introduce and use approved fiscal system of equipment for the registration of cash payments and to compulsory issue a receipt for the made turnover, that is for the service (hereinafter: fiscal receipt).

Under Article 4 of the Law, the fiscal receipt in the sense of this Law is a document which confirms the payment of the price of the goods, that is, of the service issued by a fiscal device.

The fiscal receipt is issued to the buyer of the goods, that is, the user of the service and at the moment of handover and payment of the goods, that is, of the performance and payment of the service (paragraph 2).

Article 8 of the Law stipulates that the fiscal receipt consists of a slip and a control strip, which are identical and are recorded simultaneously. A piece of the slip is given to the purchaser of the goods, that is, to the service user, while the control strip is kept by the taxpayer. The taxpayer is obliged to keep the control strip of the fiscal receipt in the facility within five years from the date of the last operation.

Under Article 10 paragraph 1 of this Law, in case of a return of goods, in case of lodging a complaint or of incorrect cover (disputed transaction) a document cash register receipt is issued for a cancelled transaction. Pursuant to paragraph 2 of this article, the document of paragraph 1 of this Article is prescribed by the Minister of Finance.

Article 11 paragraph 2 of the Law defines that the taxpayer is obliged to introduce and to use a fiscal device for each job where turnover of goods or service which are paid in cash is carried out.

Pursuant to Article 19 of the Law, the Minister of Finance prescribes the functional and technical characteristics that fiscal devices and the integrated automatic management system should possess, the procedure and the documentation for their approval to be used, the elements on the fiscal receipt, the manner of checking and controlling fiscal devices and the rules for the technical maintenance and servicing of the same.

Article 1 of the integral text of the Rulebook, adopted on the basis of Article 10 paragraph 2 and Article 19 of the Law on Registration of Cash Payments, prescribes the issuance of a document cash register receipt for cancelled transaction and the functional and technical characteristics that fiscal devices and the integrated automatic management system should possess, the procedure and documentation for their approval, the elements of the fiscal receipt, the manner of check and control of fiscal devices and the rules for the technical maintenance and servicing of the same. The challenged Rulebook stipulates new additional elements in the form of the fiscal receipt, that is, changes the form of the fiscal receipt, with that that recording of the turnover from the Macedonian products and the tax from the turnover from Macedonian products are envisaged in addition to the existing elements on the receipt, that is, in addition to the total turnover and total tax.

The fiscal logo “buy Macedonian products” and “for our well-being” is regulated in Article 29 of the integral text of the Rulebook. Namely, Article 29 paragraph 1 of the Rulebook sets down that the fiscal logo is an identification mark printed on each fiscal receipt. The fiscal logo is formed with the marks “BUY MACEDONIAN PRODUCTS”, ‘FOR OUR WELL-BEING”, “MADE IN MACEDONIA”. The fiscal logo has the following dimensions: 1.06 x 2.23 mm.

Starting from the content of the noted legal provisions, it arises that the fiscal receipt is a document issued by a fiscal device, which confirms the payment of the price of the goods, that is, the service at the moment of handover and payment of the goods, that is, the performance and payment of the service.

The receipt consists of the slip which is given to the purchaser, that is, the user of the service, and the control tag which is kept by the taxpayer, in this case the seller of the goods or the service provider.

In the case of issuing a document cash register for cancelled transaction, the Minister of Finance prescribes this document, and at the same time the Law on Registration of Cash Payments empowers the Minister to prescribe the functional and technical characteristics which fiscal devices should possess, and also the elements of the fiscal receipt.

The content of Article 19 of the law, which is actually the basis for the adoption of this sublegal act, is not a ground for the Minister of Finance to perform further classification of the products according to their origin, and with a view to meeting the tax obligations. Namely, this for a reason that the obligation to pay a tax and the work registered by the subjects in the turnover is independent of the origin of the products and refers equally to every product put into circulation.

According to the Court, it is undisputed that the state has a constitutional power to define its policy in the sphere of economy and tax policy and to define appropriate measures for their implementation, which should make a balance between the general interests of the community to collect the planned incomes from taxes, but at the same time measure that guarantee the rights of the subjects on the market – equality of the subjects on the market in a legally regulated market relations.

According to the Court, the introduction, that is, stipulation of presenting the turnover of the Macedonian products on the fiscal receipts, along with the logo “buy Macedonian products” (which also applied to the fiscal receipts) is a state measure encouraging the purchase of domestic products, and discouraging the turnover of foreign products. This stimulating measure, which is determined by the state, brings about violation of the principle of the freedom on the market and given the state involvement in the regulation of the market in this way which is contrary to Article 55 of the Constitution the same does not provide for an equal position of the subjects on the market. This especially if one takes into consideration that the principle of equality is applied to, that is respected for to each product being in legal circulation, and thereby, which is even more important, the principle of equality of market subjects irrespective of the origin of the goods being put into circulation, which is not the case with this challenged resolution in the sublegal act. Namely, this resolution favours Macedonian products, at the expense of the other products on the market, which discourages the turnover of foreign products, thus violating the principle of equality of the subjects on the market, which is in contradiction with one of the fundamental values of the constitutional order envisaged in Article 8 paragraph 1 line 7 and the freedom of the market in Article 55 of the Constitution.

On the basis of what has been noted, the Court found that Article 29 of the Rulebook (the integral text) and of the challenged provisions of the Rulebook for changing and supplementing the same, are not in accordance with Article 8 paragraph 1 lines 3 and 7 and Article 55 of the Constitution of the Republic of Macedonia, as well as with Article 1 in connection with Articles 10 and 19 of the Law on Registration of Cash Payments.

6. On the basis of the aforementioned, the Court decided as in item 1 of the present Decision.

7. The Court took the present decision in the following composition: Dr Trendafil Ivanovski, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Mrs Liljana Ingilizova-Ristova, Mrs Vera Markova, Mr Branko Naumoski, Mr Igor Spirovski, Dr Gzime Starova, and Dr Zoran Sulejmanov.

U.no.134/2008
17 December 2008
S k o p j e

Dr Trendafil Ivanovski
PRESIDENT
of the Constitutional Court of the Republic of Macedonia

Separate opinions

 

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