The National Tax Tribunal’s and Ministry of Taxation's competence

Case no. BS-55722/2019-HJR
Judgment delivered on 12 November 2021

Auto-Centralen Aalborg A/S,
Jan Nygaard A/S,
I/S Amager Ressourcecenter,
Danish Crown AMBA,
Kjærsgaard Auto A/S,
I/S Av Miljø,
Tulip Food Company A/S,
Louis Lund A/S,
Lyngfeldt A/S and
Sønderborg Forsyning Holding A/S (Nordborg Forsyning)
vs.
The Danish Ministry of Taxation

The appellants in the case had purchased lubricants etc. which had been taxed by the Danish state in contravention of EU law. The tax was repealed following a judgement from the European Court of Justice in June 2002.

In December 2011, the appellants brought a claim against SKAT (the Danish tax authorities) for repayment of the tax, which SKAT rejected in June 2012 on the grounds that the claims were time-barred. This brought the appellant to complain to the National Tax Tribunal of SKAT’s decisions to reject the claims. In 2017, the National Tax Tribunal rejected the complaints, stating that SKAT’s rejection of the claims was not covered by the right of appeal to the National Tax Tribunal under the Tax Administration Act. The National Tax Tribunal particularly referred to the fact that SKAT’s rejection decisions were not decisions within the meaning of the Tax Administration Act, and that the National Tax Tribunal was thus not competent to hear the complaints.

Firstly, the case before the Supreme Court concerned the issue of whether the National Tax Tribunal had been right to reject the complaints of SKAT’s 2012 rejection decisions. Secondly, the Supreme Court was called upon to consider whether the appellants – if the National Tax Tribunal had been entitled to reject the complaints – instead had a right of appeal to the Danish Ministry of Taxation.

With regard to the issue of the National Tax Tribunal’s competence, the Supreme Court held that SKAT’s 2012 rejection decisions did not amount to decisions within the meaning of the Tax Administration Act, and that the National Tax Tribunal had thus been right to reject the complaints.

On the issue of the Ministry of Taxation’s competence, the Supreme Court referred to rules adopted under the Tax Administration Act and held that complaints of the tax administration’s reviews that are not decisions cannot be submitted to the Ministry of Taxation’s department. Accordingly, the appellants did not have a right to complain against SKAT’s 2012 rejection decisions to the Ministry of Taxation.

The High Court had reached the same conclusion.