The Supreme Court of Norway. Burden of Proof A Comparative Look at Selected Procedural Issues The...

The Supreme Court of Norway

Burden of Proof

• A Comparative Look at Selected Procedural Issues

The Norwegian Supreme Court 2

Tittel

• No tax court • No administrative court • No expert witnesses


The Tax return principle

• The Tax Assessment Act is based on the obligation of the tax payer to provide any and all relevant information to the Tax Office.

• (the principle has survived the introduction of the prepared

tax-return for wage earners etc. 70 % made no changes – 70 % of the 30 % electronically submitted)

• The general Public Administration Act does not apply – the

tax office is not responsible for clarifying the basis which the tax assessment is based on. (with modifications)


Administrative tax assessment

• The Tax Office - the tax-payer has the obligation to provide information

• The Tax Office to consider all available

relevant information - there is no burden of proof. The Tax Office is under an obligation to base the assessment on what it deems to be the correct facts.



• The Tax Office deciding on appeal-same procedure,full

reassessment of factual and legal issues.

-grounds have to be given



• A Tax Appeal Board appointed by the county decides on further appeal

- same procedure- full reassessment

• the tax-payer is still entitled to change the legal

arguments, and to present new "facts" and additional proof for already introduced "facts"


The Courts

- the District Court- the Appeal Court- the Supreme Court

• An administrative appeal is not a requirement. The tax payer may choose to challenge the Tax Office's initial assessment, – if no appeal has been made.


The Courts

• - The courts try the validity of the tax assessment

• - the factual basis for the taxation • - the tax law and its application. (the courts not bound in this respect by

the parties understanding of the law.)


The Courts

• the courts will try if the tax office was entitled to set aside the tax-payers reported income due to insufficient/inadequate information from the tax-payer or when confronted with a controlled transaction.

• the courts can set aside the tax assessment for abuse of discretion

• However, the courts will not reassess.


The tax-payer is entitled to dispute the validity of the tax assessment for the courts. It follows that, in principle, he is not given "a fresh start". The tax-payer may, as the main rule, not introduce a new factual basis which he should have put forward with his tax-return or later on appeal.


The limitation on introducing new arguments/new proof.

The limitation on introducing new arguments/new proof.• If the tax office supplies additional new evidence, the tax-

payer would be entitled to counter this with new facts and/or new evidence.

• The courts may use general empirical rules of interpretation (applied or not by the tax authorities)

• No limitation when dealing with tax surcharges • New legal arguments are not restricted, and may be

introduced at any stage – even for the first time before the Supreme Court – provided that the relevant facts were introduced during the administrative phase.


Burden of proof.

• The "same" rules for the tax administration and the courts. • The objective is to reach the correct basis

for taxation. • However, when surcharges are

introduced, it becomes more complicated.


Burden of proof.• 1. The ordinary tax-assessment no burden of proof. • 2. Ordinary tax-surcharges, what qualifies for this must be proved

beyond "more likely than not". Surcharges can not be used unless the criterium "clearly more likely" is met (a qualified degree of certainly).

• 3. Additional tax-surcharges requiring aggrevating circumstances. Such

surcharges can be used when it has been proven beyond any reasonable doubt that the tax-payer has acted as is required for such charges to be applicable.

• 4. Tax fraud – the penal code.

any reasonable doubt.


Burden of proof - Background and practical implications.

• The higher degree of certainty was deemed by The Supreme Court to be the best solution – and

• ECHR article 6, the right to a fair trial, is understood to require such qualified degree of certainty.

Article 6 No. 2:

"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

This could be seen as a reference to national rules, but in ECtHR case- law, the phrase used is

"any doubt should benefit the accused" and similar expressions are used.



Ordinary tax surcharges, in the Norwegian system, are considered as a "criminal charge" and it should then follow that "any doubt should benefit the tax payer".

As we have seen:-this is the solution for the heightened surtax only

-for the ordinary surtax the degree of certainty required has been modified


The Ministry of Finance:

"It should not be expected that tax authorities work to any extent will be made more difficult as a result of the strengthened burden of proof – clearly more likely."

The brain of a

Non bis in idem

• ECHR P 7-4. "No one shall be liable to be tried or punished again in criminal

proceedings under the jurisdiction of the same state for the same offence for which he has already been finally aquitted or convicted in accordance with the law and penal procedure of that State." • Criminal sanction first, and then Tax surcharges

or Tax Surcharges first, and then Criminal sanctions

- neither alternative acceptable


Non bis in idem

• However, both tracks in coordination, interwoven or not, should be acceptable – we believe.

• The tax-payer has not at any time an expectation worthy of protection, that he will be sanctioned only following one of the two procedures started against him.

• This approach has not been challenged for the ECtHR


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