Definition of the burden of proof

The Constitutional Court of the Slovak Republic in its resolution of 16 December 2009, file no. III. ÚS 401/09, defined the burden of proof of the tax subject as follows:

(1) A tax subject has two basic obligations in tax proceedings: the obligation to state claims and the obligation to prove their claims. Formally, both of these obligations are implemented by the tax subject filing a duly completed tax return (obligation to declare), together with him submitting to the tax administrator written documents, which he is obliged to keep by law (burden of proof). These are most often accounting documents. In this way, the tax subject fulfills his obligations in the tax proceedings, i.e. also the evidentiary obligation.

(2) However, if the tax administrator doubts the credibility, truthfulness or completeness of the evidence submitted by the tax subject during the examination of the said written documents, even within the tax audit, then it can be stated that the tax administrator has fulfilled its evidentiary obligation, and in that case it is on the tax subject, whether by presenting or proposing further evidence, to rebut the questioning of its original evidence by the tax administrator. In the indicated way, in the process of proving in tax proceedings, the burden of proof is shifted between the tax administrator and the tax subject.

What evidence is not in the power of the tax subject?

At first sight, it may seem that the tax subject has it fully in his hands whether or not he bears his burden of proof. It is also possible to refer to § 24 par. 4 of the Tax Procedural Code, according to which anything can be used as evidence that can contribute to the identification and clarification of the facts decisive for the correct determination of the tax and which is not obtained in violation of generally binding legal regulations.

However, the practice is such that securing a large part of the evidence is not in the power of the tax subject. This is evidence that the tax subject is unable to carry out or to bring to the tax administrator. At the same time, he relies on the fact that he will ""only"" propose to the tax administrator to carry out this evidence. Examples of such evidence are:

• witness summons or bringing a witness to tax authority, such as a supplier
• examination of an expert
• conducting a local survey
• handing over a document in the possession of a third party, such as a supplier
• obtaining data held by third parties, such as a bank

On the contrary, it is only within the power of the tax authority to provide that evidence and to enforce it. For example, the tax administrator may have the witness shown if he does not appear at the call. Another example is that the tax administrator asks a third party to hand over a document under threat of a fine.

In each case, the tax administrator decides whether or not to provide specific evidence. This follows from the rule that the execution of evidence is led by the tax administrator. However, if the tax administrator does not meet the tax subject's request to carry out specific evidence, he may in this way practically prevent the tax subject from bearing his burden of proof.

Request for the executing of evidence

Therefore, in a situation where you are proposing to the tax administrator to carry out specific evidence, it is also advisable to inform the tax administrator about what facts you will want to prove with the proposed evidence. This will allow the tax administrator to understand your proposal and assess whether the evidence has the potential to be useful in the case under review.

At the same time, however, it is appropriate to refer to the recent judgment of the Supreme Court of the Slovak Republic of 18.5.2021, file no. 1Vs/1/2020. The Supreme Court of the Slovak Republic states in paragraph 35 of this judgment that "if the Financial Directorate of the Slovak Republic bases its conclusions on the fact that the tax subject did not bear the burden of proof, it must first allow the tax subject to bear this burden and provide additional evidence proposed by the tax subject, if the evidence is directed to the proof of proper completion of the supplies." In other words, the tax administrator should give the tax subject the opportunity to bear his burden of proof and thus to take the evidence he proposes.