Tax audit in the age of Corona. No one is bound to the impossible.

Tax audit in the era of Corona. No one is held to the impossible.

Major Force as a ground for the admissibility of late appeals.

Corona.

Corona.

In his televised appearance on March 20, 2020, President Kais Saïed decreed a total lockdown throughout the country from Sunday, March 22 to mitigate the risks of the spread of the coronavirus.

According to his announcement, this decision means that all Tunisians must remain at home until further notice, except in cases of extreme urgency. He also said that the most necessary public services will remain functional and that only extreme emergency travel will be allowed

Should we recall, moreover, that Tunisia is, in any case, officially under the regime of extension of the state of emergency following the adoption of Presidential Decree No. 2020-3 of January 30, 2020, under which «The state of emergency is extended throughout the territory of the Republic of Tunisia for 3 months, from 31 January 2020 to 29 April 2020»?

The government executive has announced no social, tangible economic measures to reassure taxpayers, and taxpayers, on the admissibility of their possible late administrative appeals against the results of the tax audits notified in recent weeks.

It should be noted that under the provisions of Article 44 of the French Tax Code, the taxpayer must respond in writing to the results of the tax audit, within 45 days of the date of notification. At a later stage in the adversarial proceedings, the taxpayer shall also be required within 15 days of the date of

Notification of the tax authority’s reply, to make in writing its observations, objections, and reservations relating to that reply.

The letter of the text does not allow any exception of «force majeure» which can admit a late recourse. To do, and in the absence of an explicit response from the executive, it is imperative to prepare for situations of conflict between the taxpayer and the treasury to exceed the time limits for contesting by way of complaint or legal recourse a decision taken against it.

COVID-19: A case of major force?

What does the law say? Under Article 283 of the Code of Rights and Obligations, "Major Force is anything that man cannot prevent, such as natural phenomena (floods, droughts, storms, fires, grasshoppers), enemy invasion, the act of the prince, and which makes it impossible to perform the obligation. The cause that could be avoided is not considered to be force majeure if the debtor does not justify that he exercised all diligence to protect himself against it. The cause caused by a previous fault of the debtor shall not also be considered as force majeure.”

The existing jurisprudence on disease and epidemics goes in the opposite direction[1]. Thus, the bacillus of the plague[2] and the H1N1 flu epidemics in 2009[3] were not considered health crises constituting force majeure events. An epidemic is therefore not necessarily or automatically a case of major force. It requires us to wait for the dramatic consequences of this pandemic and this lethal virus for which there is no vaccine or medicine.

However, at that time, a decision to lock down the population constitutes a “done by the prince” right, in that they limit and prohibit the gathering and movement of people, taxpayers, tax advisers, and experts-the accountants and accountants of taxpayers whose tax situations are subject to tax audits.

Therefore, according to the aforementioned article of the Code of Obligations and Contracts, such a "fact of prince" constitutes a force majeure constituting an insurmountable obstacle to the performance of the obligations of opposition.

Moreover, requiring a taxpayer to exercise his “right” to object in exceptional circumstances is an unequivocal violation of the right to object that he can exercise under normal conditions.

Extension of Deadlines

Being, neither the accounting and tax profession nor the Directorate General of Taxes have been mentioned among the list of services and bodies of primary necessity that will open their doors during the period of confinement decreed, The Department of Finance appears to be soliciting to announce an extension of time limits for opposition proceedings and suspension of all audits.

Such a decision does not therefore have the effect of suspending or interrupting the time limit. Such a suspensive event temporarily stops the course of the period and causes it to resume when the cause of suspension disappears, for the time remaining when it occurred.

Have and give confidence, success is in us, all and all, with the involvement and effort of all!

[1] Dalloz News - Ludovic Landivaux, Contracts and coronavirus, article published on March 20, 2020

[2] Paris, 25 sept. 1996, No. 1996/08159.

[3] Besançon, 8 jan. 2014, No. 12/0229.