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Chile unveils independent tax court
Internationaltaxreviw.com,
March 1, 2009. Taxpayers now have a better chance of a fair hearing in court
in Chile after the introduction of an independent body of specialist judges.
Taxpayers now have a better chance of a fair hearing in court in Chile after
the introduction of an independent body of specialist judges.
"It is a great, great step," said Carola Trucco of Barros & Errázuriz
Abogados.
Until now the tax courts were run by the Chilean tax authority, with the
judges being officers from the authority.
"The law provided that the judge had to be the regional director of the
corresponding office to the domicile of the taxpayer that had the
complaint," said Trucco.
"That led to not a very impartial procedure. You had a roughly 70%
likelihood of losing in the first stage," she added. "Then you had the
possibility to appeal before the Chilean courts of appeal but most of the
time you were in front of judges that were not very interested and didn't
have a deep knowledge of tax matters so it was difficult to appeal. It was
likely that you would also lose in the second stage."
The appointment of Ricardo Escobar, formerly head of tax at the Carey y Cia
law firm, to the role of tax administration commissioner in 2006 began a
series of changes to the country's tax system.
"This has been an important work of the current tax administration," said
Trucco. "The current director [Escobar] comes from the private sector and
when he assumed his engagement with the government one of his priorities was
to achieve an independent procedure. He has a very global view and a
business-oriented vision of taxes which has helped a lot."
In a law published at the end of January, Escobar's vision became reality.
The legislation created a special tax and customs court. The court takes its
powers directly from the Supreme Court of Chile and not from the tax
authority or the national customs service.
The new system will be implemented fully in four years' time. The plan will
be rolled out gradually in regional areas and it will be working in
Santiago, the capital, by 2013.
"People are very positive about this," said Trucco. "There are some minor
issues regarding how the procedure was created but generally it is very
positive."
With a better chance of a fair hearing, it is likely that more taxpayers
will take the chance of going to court over a tax dispute.
"I think it will increase [the number of court cases]," said Trucco. "There
are a lot of cases at the moment where you see that you have the tax
authority as the opposition and you just say "OK I'll pay, I won't waste my
time".
However it is not only the small likelihood of success that prevents more
litigation at the moment.
"Normally these cases take between five and 10 years to be resolved," said
Trucco, explaining that many taxpayers do not want to wait that long for an
answer.
"And if you finally lose, there is an interest charge of 1.5% monthly, 18%
annually. And as time goes by, finally you can have 200% more taxes than you
had to pay originally," she added. "You have the adjustment, the interest
plus in some cases a penalty. So if you know that you don't have much chance
of winning, you just pay immediately and don't bother discussing with the
IRS."
Trucco hopes that the new system will also make the process much faster as
the judges will understand the subject matter and be able to deal with cases
faster.
The question of where the judges will be recruited from raises some
concerns.
"I assume there will be a lot coming from the tax authority. And the private
sector too. Where they are going to get them is not provided for in the
law," said Trucco.
"What I worry about is that lawyers working with the government are very
specialised in certain matters, they don't have the global view you get
working in the private sector. That is a concern, I don't know if that is
going to, initially at least, affect the procedures."
The timing of the release of information on this change means there may be
more debate on the process to come.
"This was published at the end of January, the middle of summer in Chile, so
I think the discussions will really start in March," said Trucco. |