THE
COMPETITION BETWEEN THE TAX OFFICE AND THE OTHER CREDITORS TO SETTLE THEIR
CLAIMS
University
of Social Science and Humanities
in
Warsaw/Poland
CONTENTS: 1. Introduction. – 2. The claims of state treasury
and the claims of creditors in Poland. – 3. The claims of state treasury
and the claims of creditors in Italy. – 4. The fiscal claims and the
claims of creditors in ancient Rome. – 5.
Conclusions. – 6. Bibliography.– Abstract.
1. – Introduction
The
subject of this study is the presentation and analysis of the sources of Roman
law and selected contemporary legal solutions concerning the creditors'
competition in the case of combining civil law claims, with particular regard
to the position of claims of the State Treasury (fiscus) against other claims,
in enforcement proceedings. In all legal systems of the Member States of the European
Union, this proceeding is based on the enforceable title issued, which is the
basis for enforcement of judgments and other acts issued in civil cases. This
situation occurs when the debtor's assets are not sufficient to cover his
obligations, which in consequence results in his bankruptcy. In this research,
the administrative enforcement of fiscal receivables, especially tax claims, is
omitted[1].
The
problem itself is important for several reasons. First and foremost, we must
point to the growing omnipotence of the state despite the far-reaching process
of globalization. As a result of this phenomenon, there is increasingly
favoring the state treasury claims against other receivables. This phenomenon,
in turn, imposes the ever stronger economic position of large multinational
corporations which easily use such instruments as arbitrage to make their
claims not only against other creditors, but even against the claims of the
host country[2].
The re is thus a need to present, from a legal - comparative and legal -
historical perspective, the legal arrangements for the order of satisfying
creditors.
In
order to start, a hypothesis should be drawn that the in certain countries, the
current legal status of individual claims in enforcement proceedings is not
uniform. Most often it is a product of historical development of a given legal
system and the product of external influences. The first legal regulations governing
the settlement of competition between creditors and the tax office come from
the Roman law.
In
this article, in addition to the analysis of solutions developed under the
Roman law system, there are references to solutions currently operating under Polish
and Italian law. The choice of these legal systems was based on the criterion
of author’s origin and the criterion of publication of this study. In the first
place, the solutions developed in the contemporary legal systems will be
analyzed, and finally the solutions contained in the Roman law.
2. – The claims of state treasury and the
claims of creditors in Poland
The
Polish legal system is under a great influence of German, partly French and
Austrian solutions. By the fact of membership of the European Union, Polish
legal system is also affected by Community law[3]. In
the case of the Polish legal model as to the order of satisfying creditors in
enforcement proceedings, it has a unique shape, distinct from those encountered
in Europe[4]. It
is modeled on the Russian legislation and was
transferred in the Polish legal system already in
the interwar period. This allowed the liquidation of the existing
differentiated legal solutions in that area, which were the result of the
partition of Poland in the years 1795-1918[5].
The
enforcement proceedings in Poland are based on the principle of formalism,
which in turn guarantees the right of creditors
to fully and equitably satisfy their claims. This law is based on the principle
of equality of debt and the principle of privilege. According to this first
rule, all claims are equal, regardless of the creditor. This rule, however,
applies only to a group of claims falling under the same category[6].
The preference therefore concerns not
individual claims, but their categories. The creditors are treated according to
the principle of proportionality within a category. In this respect, the Act of
17th November 1964 - the Code of Civil Procedure (consolidated text OJ RP of 2016, item 1822) (hereinafter:
the CCP) is the basic act regulating the order of satisfaction of creditors'
claims by category. According to the article 1025, § 1 of the CCP, the Polish
legislator introduced the following categories of claims:
1. the enforcement costs;
2. the maintenance (alimony or spouse support)
claims;
3. the work salary for a period of 3 months
up to the minimum wage specified in the separate regulations and the pensions
for compensation for illness, incapacity for work, disability or death and the
cost of the usual funeral of the debtor;
4. the receivables secured by a marine
mortgage or by the privilege on a sea
ship;
5. the mortgages, pledges, registered
pledge and tax pledge or the use of statutory priority and the rights that
prevailed on the property prior to the entry in the land register of the
initiation of enforcement or before the filing of the application to make such
an entry;
6. the work receivables unpaid in the third
order;
7. receivables being a subject to the
provisions of Chapter III of the Act of 29th August 1997 - Tax Code, unless they
have been satisfied in the fifth order;
8. the receivables of creditors who carried
out the execution;
9. the other receivables.
The
above list of order of fulfillment claims substantially corresponds to the provisions
of the article 345, § 2 of the Act of 28th February 2003 - Bankruptcy Law
(consolidated text – OJ RP of 2016, item 2171). In this article, the Polish
legislator decided that claims secured by mortgage, pledge, registered pledge,
tax pledge and marine mortgage were satisfied in order of priority[7]. This
priority is set out in the above-mentioned article 1025, §1 of the CCP which
states that fiscal claims arising from a pledge or compulsory mortgage are only
in the 5th or 7th place in the hierarchy of claims[8].
3. – The claims of state treasury and the
claims of creditors in Italy
At
the beginning, some general information about the Italian claim processing
system will be provided. The legal basis, for determining the order in which
claims of creditors are satisfied by the division of funds obtained during the
execution of debtor's assets, is provided in the article 2741 of the Decree of
16th March 1942 - the Civil Code (OJ IT of 4th April 1942, no 262) (codice
civile - further: c.c.). According to article 2741, paragraph 1 of the c.c.,
the creditors have equal rights to meet their claims with current and future
debtor property. This rule may have limitations due to the privilege of certain
claims, as well as pledges and mortgages (the article 2741, paragraph 2, c.c.)[9]. The
distribution of the amount received from the sale of the property covered by
the pledged or mortgaged under the article 541 of the c.p.c takes place
according to the consensus established between the creditors. If they cannot
reach this consensus then the division rules are set by the judge[10]
(article 542 c.p.c.).
To
determine the order of satisfying the debt from the debtor's assets, the
article 2748 of the c.c., which consists of two parts, is essential. The
paragraph 1 of the article 2748 c.c. stated that special privileges cannot be
exercised with the detriment to the pledge creditor. However, in the legal
provisions, the other solutions may be found. In turn, in the paragraph 2, it
is mentioned that the established enforcement of the immovable property permits
the satisfaction of the privileged creditor in the first place, before the
mortgage creditor.
The
privilege of claim may be originated in a provision of law or in an agreement
between the parties if such an opportunity is permitted under law (article 2745
c.c.). The privilege, under Italian law, does not create the right but imparts
a specific qualification to a particular claim. Therefore, the order of claims
does not depend on the moment of its creation, but rather on its qualifications
resulting from the Act[11]. A
creditor, who has the privilege of enforcement from the real estate,
outperforms the mortgage creditors (article 2748, 2 c.c.).
The Italian legislator divided the
enforcement privileges into general and specific. The first group concerns only
the movable property of the debtor (article 2746 c.c.). In the case of
impossibility to satisfy creditors' claims from the movable property of the
debtor, the benefit of the subsidiary enforcement also includes his unmovable property[12]. The
special claims are related to certain movable and immovable properties. Their
existence is justified by the union of claims and things, such as the right of
privilege of the hotel's owner to seizing the properties belonging to the hotel
guests in the case of non-payment for the hotel[13].
From
the point of view of the subject of this study, it is important to show the
place of the state claims and, consequently, the local self-government claims,
in the system of privileged claims. The privileged position of Treasury
receivables in Italy arises from the article 2753 c.c. The Italian State
Treasury ex lege is entitled to
collect its receivables from movables of the natural and legal persons.
According to the article 2752, paragraph 2 of the c.c., by the power of law,
the State Treasury claims have a privileged position in relation to the movable
property of the debtor for fiscal receivables arising from outstanding direct
and indirect taxes and unpaid fines. The fiscal receivables gain privileged
status only after entering them into a special register of receivables. The
claims of local government units have an analogous position[14].
The
order of privileged claims is regulated in the article 2777 of the c.c. and in
the article 2778 of the c.c. According to the second mentioned article, the tax
claims arising from not paying the land tax are already in second place. The
tax claim resulting from unpaid indirect taxes is on the seventh position.
Other fiscal receivables are only at the end of the list.
In
addition to the privileged claims, in the Italian system, there is a
possibility of securing receivables, including tax claims, by the pledge or
mortgages. In principle, however, in Italy, tax claims are secured by a
privileged claims clause.
4. – The fiscal claims and the claims of
creditors in ancient Rome
The
history of ancient Rome is a perfect example of the origins of the emerging
European civilization[15].
This state, existing the longest in human history, left many magnificent
monuments, including the legal system that has become the cornerstone of
continental legal culture[16].
Many modern terms, as well as legal institutions, have their origins in the
solutions developed in the Roman law. One of them is the enforcement of claims
in case of debtor's insolvency.
The
enforcement proceedings in the Roman law were an important element in the
development of particular forms of the civilian Roman process. It was
distinctly different from the executions in criminal proceedings in
which the execution has a nature of punishment. The property seizure was most
often one of the additional penalties, often accompanied by the death penalty.
This area is completely omitted in our research[17].
Undoubtedly,
the most significant stage of this development was the transition from personal
execution (nexum) to property
executions, which took place on the basis of lex Poetelia Papiria in 326 BC[18]. The
main task, however, in this point, this is not to present the course of
enforcement proceedings in Roman law because it was the subject of numerous
Romanesque studies[19], but
to show the place of debt of the tax in coincidence with other claims. To
answer this issue is of particular importance in the case when the material
resources received from the sale (licitatio) of the debtor's assets were
not enough to cover all claims.
However,
the origins of the privileged position of the fiscus in the Roman law should be
sought in the reforms carried out by Octavian August on the basis of lex Iulia et Papia Poppaea of 9 BC[20].
This law has introduced sanctions against two groups of people, namely caelibes – celibate and orbi – those who are in marriage (iustum matrimonium) but without
children. The first group was completely deprived of the ability to acquire (capere) inheritance on the basis of a
testament. On the other hand, Orbi
could only receive half of what they supposed to receive on the basis of a
testament. The remaining part increases the share of others inheritors in the
inheritance. In the absence of others inheritors, the property was passed on to
aerarium, and later in the period of
the Principate, was passed on fiscus.
Such goods were described as caducum.
On the basis of these solutions, as part of the cognitive process, a claim was
issued for the release of the vacant part of the inheritance - caducorum
vindicatio
During
the republic, the relationship between aerarium
and the citizen was not based on civil or private proceedings. The state has
always been stronger party of the proceedings on claims belonging to aerarium the state. This was due to the
concept of a state understood at the time as a gathering of full-fledged
citizens, but only free men. Such a state concept, in principle, contained the
imperative for its dominance over society or its individual members[21].
The
change of perception of the state took place only with the time of Principate
and the identification of the state with the emperor-princeps. Hence, next to aerarium populi romani, fiscus, which was originally the private
property of the emperor, began to function Fiscus
gradually transformed itself into the main a state-run wealth with independent
legal existence. Consequently, a fiscal revenue system and fiscal
administration were created[22]. New
and increasingly frequent legal relationships of a binding nature between the
fiscus (tax office) and private individuals have arisen. As a result, there
were legal disputes in which fiscus
became a party. To settle those disputes, the same rules like in disputes
between private individuals were applied[23]. The
fragment of the panegyric, written by Pliny the Younger in honor of Trajan, is
an example of such a practice. In this text, Pliny said that Nam tribunal
quoque excogitatum principatui est, par ceteris, nisi illud litigatoris
amplitudine metiaris[24].
Turning
to the important issue of this study - the place of fiscus claims among the
other claims, several sources, requiring analysis should be pointed to.
D. 49.14.11 (Iavolenus libro nono epistularum): Non
possunt ulla bona ad fiscum pertinere, nisi quae creditoribus superfutura sunt:
id enim bonorum cuiusque esse intellegitur, quod aeri alieno superest.
Iovelenus,
a lawyer who lived at the turn of the first and second centuries after Christ,
gave a very important rule in the reign of Trajan. This lawyer stated that if
the sum of the debt exceeds the debtor's assets, then the fiscus should be
satisfied only with what remains after the satisfaction of other creditors. It
may be assumed that such a solution actually functioned in the early second
century after Chr. However, over time, this rule was subject to far-reaching
changes and the preserved sources from later period are the evidenced for such
situation.
D. 49.14.1.1 (Callistratus l. primo de iure fisci): An bona, quae solvendo non sint, ipso iure
ad fiscum pertineant, quaesitum est. Labeo scribit etiam ea, quae solvendo non
sint, ipso iure ad fiscum pertinere. Sed contra sententiam eius edictum
perpetuum scriptum est, quod ita bona veneunt, si ex his fisco adquiri nihil
possit.
In
the above-mentioned text, Callistratus quoted the opinion of Labeon. His
statement concerned the indebted estate which fiscus claimed under the August law. According to a lawyer living at
the turn of the first century before Christ and the first century after Christ,
the property was, by law, owned by the fiscus and the fiscus overtook the
claims of other creditors. According to G. Provera[25],
Labeon represented the solution found in the Praetor’s edict Cui heres non extabit[26].
Edict, and those solutions were a reflection of the regulations contained in lex
Papia et Poppaea, under which act, caduca and vacantia
belonged exclusively to the fiscal system.
In
the meantime, as G. Provera rightly pointed out, there must have been another
solution in the edict, namely, the property that was not sufficient to cover
the debt should be sold. There was a discrepancy between the dissolution of the
edict and the views of the doctrine which at that time was normative. G.
Provera repeating S. Solazzi adopts a different version of the edict, namely,
the claimants could only satisfy their claims if it could not or was not be
done by the fiscus[27].
Such a solution also results from the later Diocletian's constitution
C. 7.72.5: Imperatores Diocletianus,
Maximianus. Si bona debitoris tui
vacare constet et haec a fisco non agnoscantur, in possessionem eorum mitti te
a competenti iudice recte postulabis. * DIOCL. ET MAXIM. AA. ET CC. ABYDONIO. *<A 293 XVII
K. IAN. AA. CONSS.>
The
content of this constitution shows that creditors could only satisfy their
claims if the fiscus did not meet their claims from vacantia, because for example nobody reported the fact to the
fiscus or the fiscus had satisfied its claim directly from the debtor. In my
opinion, the solution contained in the Diocletian's constitution is rather a
reflection of the evolution of the development of the rules governing the
location of fiscus claims in the run-up to the claims of other creditors. Hence,
it should be assumed that the texts of Modestinus and Iovelenus, and thus of
the Praetor’s edict, are original. The change of concept occurred only during
the reign of Diocletian. Such argumentation is also justified in the fact that
Diocletian built a strong state, modeling on the Eastern despots, gradually
appropriating the priority of fiscus claims against others.
5. – Conclusions
The
subject of this study was an analysis of the sources of law in order to present
elaborated rules concerning the order of fulfilling claims from the debtor's
property and the place of fiscal claims in coincidence with other types of
receivables. Three solutions operating in three different legal systems -
Polish, Italian and Roman law have been a subject to this analysis. It was
relevant to this research to use not only the law-dogmatic method, but also
comparative-historical method, which allows seeing the similarities and
differences in solutions to determine the order of satisfying the claims of the
debtor's property. For methodological purposes, positive systems were first
analyzed, and finally the solution adopted in Roman law was presented. You also
need to know that publishing restrictions do not allow for a broader view of
this subject.
The
contemporary solutions are similar and at the same time quite different from
each other. The similarity between the Polish and Italian systems is evident in
the fact that in both cases the order of claim fulfillment is legally
guaranteed. Thus, the stability and legal certainty for economic turnaround are
here. In both systems civil tax claims are among the privileged claims.
However, the order of privileged claims was different. In Poland, the order of
fulfilling creditors' claims was introduced by the legislator in the code of
civil procedure (Article 1025 of the CCP). In Italy, in turn, the legislature
introduced a category of senior claims, among which tax claims have very strong
position (Article 2752, paragraph 2). There is also common factor for both
systems which is the ability to enforce civil tax claims - the state treasury
is on the same terms as other citizens using enforcement proceedings.
Those
solutions, which today seem obvious, were created over several centuries in the
Roman law. In the republican period, it was not possible to talk about equality
of fiscal claims with claims of the state. Omnipotence of the state determined
the absolute priority of the aerarium
claims against other claims. The change of this concept was possible only with
the change of the political system to the Principate. The private property of the emperor, which was a
fiscus, became not only a state-run wealth but it received a legal entity.
Thus, in disputes with the fiscus, citizens may have disputes before the
courts. Fiscus had his representative in the advocatus fisci[28]
person, as in Poland today the function is the General Counsel to the Republic
of Poland or Avvocato dello Stato in Italy[29]. The
development of the Roman concept of fiscal claims in coincidence with other
claims was an important contribution to today's solutions at least in
continental Europe.
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Abstract
The
subject of this study is to present the place of civil claims of tax office in
connection with other claims. The author, as a research hypothesis, assumed
that fiscal claims are stronger than other claims. In order to meet the claims
of the debtor's property, the state treasury is a stronger party. The aim of
the study is to analyze the solutions in Poland and in Italy from a comparative
and historical perspective. The solutions developed under Roman law have
undoubtedly influenced the equal treatment of civil fiscal claims with others,
at least in the same group of privileged claims in enforcement proceedings.
Keywords: fiscus, debt claim, privileged claims,
satisfaction of claims, Roman Law Polish law, Italian law.