Fortolkning af begrebet ”grov uagtsomhed” i relation til reglerne i skatteforvaltningsloven, skattekontrolloven og straffeloven

Christian Skovgaard Hansen

Student thesis: Master executive thesis

Abstract

This master thesis aims to examine the concept of “gross negligence” in Danish law, including whether it is understood in the same way in relation to the rules laid down in the Danish Tax Administration Act (skatteforvaltningsloven), Tax Control Act (skattestyrelsesloven) and Criminal Code (straffeloven). It is therefore examined what is generally meant by the term "gross negligence" in criminal law, and on how the term is interpreted in the danish tax law, especially with a focus on section 27(1)(no. 5), of the Tax Control Act and section 82 of the Tax Control Act. In order to use section 27(1)(no. 5) of the Tax Administration Act, it is required that the taxpayer or someone on his behalf has intentionally or with gross negligence caused the tax authorities to make a tax assessment on an incorrect or incomplete basis." It is therefore not decisive whether it is the taxpayer himself or whether it is someone on his behalf, e.g. an accountant or a lawyer who has committed the decisive act. The question is how to assess this gross negligence. There is an identity between the assessment of gross negligence in the Tax Administration Act and in the Tax Control Act. Already after the former Tax Agency Act, which was replaced by the Tax Administration
Act, it appeared that there was an identity between the assessment of gross negligence in the Tax Administration Act and in the Tax Control Act.
Section 82 of the applicable Tax Control Act, which deals with the active tax fraud, is a continuation of section 13 of the previous Tax Control Act. The more serious cases of tax fraud are regulated in section 289 of the Criminal Code, which contains a stricter penalty framework for these more serious cases.
The assessment of whether there is (at least) gross negligence in the Tax Administration Act is therefore identical to the assessment in the Tax Control Act, which is correspondingly identical to and based on the assessment in the Criminal Code. The boundary between gross and simple negligence is fluid, where it is almost a slippery transition, where the boundary is not necessarily drawn in the same place every time. It must instead be decided in relation to each individual relationship and ditto behavior. The fact that there is an identity between the assessment of gross negligence in the Tax Administration Act
and the Tax Control Act does not mean that the condition is also punished under the Tax Control Act or the Penal Code. A condition may well be covered by the Tax Administration Act, even if it is not covered by the Tax Control Act and the criminal code. This is due to the law of evidence, which is addressed in Chapter 3, Section 3.3. The criminal law assessment and the tax administrative law assessment are therefore not different. It is only the assessment of evidence that is different. The requirement for proof in criminal law is stricter than in ordinary tax law. In criminal law, the principle "in dubio pro reo" applies, which means that any reasonable or justified doubt must benefit the accused. The assessment pursuant of section 27(1)(no. 5) in the Tax Administration Act, on the other hand, takes place according to the general tax law assessment of evidence, where the assessment of evidence is "free", and the person who asserts something must also prove that there is the necessary factual and legal basis
for it to exist. The requirements for this assessment of evidence must be assessed concretely. This is also accepted in case law.

EducationsMaster i Skat, (Executive Master Programme) Final Thesis
LanguageDanish
Publication date2021
Number of pages55