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FIFTH SECTION

Application no. 7356/10
Lucky DEV
against Sweden
lodged on 21 January 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mrs Lucky Dev, is a Swedish national who was born in 1961 and lives in Hässelby. She was represented before the Court by Mr B. Leidhammar, a lawyer practising in Stockholm.

The facts of the case, as submitted by the applicant, may be summarised as follows.

A.  Tax proceedings

By a decision of 1 June 2004 the Tax Agency (Skatteverket) found that the applicant ran two restaurants together with her husband, Mr Shibendra Dev (who has lodged application no. 7362/10 before the Court), and that, consequently, they should each declare half of the proceeds and the costs of that business. As the applicant had failed to declare her full income in her tax return, the Agency revised upwards her income taxation for 2002 (i.e. the taxation year 2003), finding her liable to pay tax on undeclared business income (inkomst av näringsverksamhet) amounting to 764,945 Swedish kronor (SEK). It also increased her liability to value-added tax (mervärdesskatt; “VAT”) for 2002 by SEK 379,365. Finally, as the information supplied by the applicant in her tax return was found to be incorrect and the revision had had to be made under a discretionary assessment procedure, given the company’s deficient accounting, the Agency ordered her to pay tax surcharges (skattetillägg), amounting to 40% and 20%, respectively, of the increased tax liability for income tax and VAT.

Following the applicant’s appeal, the Tax Agency, on 18 March 2005, made an obligatory review of its decision but did not change it.

On 10 January 2007 and 29 October 2008, respectively, the County Administrative Court (länsrätten) in Stockholm and the Administrative Court of Appeal (kammarrätten) in Stockholm upheld the Tax Agency’s decision.

By a decision of 20 October 2009 the Supreme Administrative Court (Regeringsrätten) refused leave to appeal.

B.  Criminal proceedings

By a judgment of 16 December 2008 the Stockholm District Court (tingsrätt) convicted the applicant of an aggravated bookkeeping offence (grovt bokföringsbrott). She was given a suspended sentence and ordered to perform 160 hours of community service. The crime concerned the same period as the above-mentioned tax decisions, that is, the year 2002. The District Court found that the bookkeeping of the restaurant business had been seriously deficient and that the applicant and her husband had been responsible for failing to account for considerable proceeds and VAT, which had involved large profits for them. In regard to the public prosecutor’s claim that the applicant was guilty also of a tax crime, the court considered that it could not be ruled out that, as she claimed to have relied on her husband running the business properly and their accountant having entered the correct figures in her tax return, she had been unaware that her tax return contained false information. Thus, it had not been shown that she had intended to give incorrect information, for which reason the indictment was dismissed in this respect.

On 12 October 2010 the Svea Court of Appeal (Svea hovrätt) rejected the applicant’s appeal.

On 25 November 2010 the Supreme Court (Högsta domstolen) refused leave to appeal.

COMPLAINTS

1.  The applicant complains under Article 4 of Protocol No. 7 to the Convention that, through the imposition of tax surcharges and the conviction for an aggravated bookkeeping offence, she has been punished twice for the same offence. She argues that the two proceedings have been based on identical facts.

2.  The applicant further complains under Article 6 of the Convention that she did not have a fair hearing in the tax proceedings, as the level of proof required for the imposition of tax surcharges was too low given the fact that, in accordance with the Court’s case-law, such an imposition involves the determination of a “criminal charge”. She argues that, when a discretionary tax assessment is made because the information supplied by the individual provides no reliable basis for an assessment, the Tax Agency only has to show that it is probable (sannolikt) that the tax cannot be calculated reliably in order to impose surcharges.

QUESTION TO THE PARTIES

Having regard to the fact that the applicant was convicted of an aggravated bookkeeping offence and indicted for a tax crime and tax surcharges were imposed on her, has the applicant been tried or punished twice for the same offence in the territory of the respondent State, as prohibited by Article 4 § 1 of Protocol No. 7?