The Government of the Republic of Serbia, with the co-signature of the President of the Republic of Serbia, issued a Regulation on the Application of Deadlines in Administrative Procedures during a State of Emergency (“Official Gazette of the RS”, No. 41/2020 and 43/2020, hereinafter referred to as: the Regulation), which Regulation stipulates the procedure regarding the application of deadlines in administrative procedures during the state of emergency.
Article 2 paragraph 1 of the Regulation prescribes that the parties in procedures before national authorities and organizations, authorities and organizations of provincial autonomy and local self-government units, institutions, public utility companies, special authorities through which the regulatory function is exercised and legal and natural persons entrusted with public authority, during the state of emergency in the Republic of Serbia, cannot bear the consequences of their failure to act within the deadlines prescribed or determined in accordance with the laws regulating general administrative procedure or special administrative procedures.
Considering this from the perspective of administrative procedures before the Business Registers Agency, the Tax Administration and the Republic Geodetic Authority, this provision protects the rights of parties participating in administrative procedure from the consequences of failure to comply with the deadlines provided by the laws which are regulating the general administrative procedure or special administrative procedures.
However, which are the deadlines?
Article 2 paragraph 2 of the Regulation regulates the delivery of the decisions in administrative procedure and notification activities:
Delivery of decisions in the administrative procedure and notification activities which have been executed during the state of emergency, from which non-extendable deadlines begin to count, shall be considered, in terms of application of the prescribed deadlines, executed within 15 days from the termination of the state of emergency.
Let’s take the tax procedure before the Tax Administration as an example. The general deadline for filing an appeal in the tax procedure is 15 days from the date of delivery of the tax administrative act (resolution or conclusion). What will be the deadline, in this case, for filing an appeal against such a tax administrative act? The answer to this question depends on when it was delivered to the taxpayer.
If, for example, the resolution was delivered after March 15th 2020 (after the declaration of the state of emergency), then it is clear that the rule stated in article 2 paragraph 2 of the Regulation is applicable. In other words, in these cases it will be deemed that the decision was delivered to the taxpayer when 15 days have elapsed since the termination of the state of emergency and the deadline for appeal will start to run from that moment.
On the other hand, the question arises how the rules on deadlines will apply in cases where the resolution of the Tax Administration was delivered to the taxpayer before the state of emergency, but the deadline for appeal expired during the period of state of emergency? For example, if the resolution was delivered on March 13th, the deadline for appeal would expire on March 28th. In this case, article 2 paragraph 2 of the Regulation is not applicable, but another question arises whether, if the taxpayer fails to file an appeal within that period, it loses the right to appeal. In connection with this, article 2 paragraph 1 of the Regulation should be borne in mind, according to which taxpayers cannot bear the consequences of their failure to act within deadlines prescribed or determined in accordance with the laws governing general administrative procedure or special administrative procedures (such as tax procedure).
From the above it follows that a taxpayer who does not file an appeal within the prescribed deadline and that period has expired during the state of emergency, due to this failure, cannot bear the consequences, in the sense that its appeal is rejected as untimely.
However, if the taxpayer does not file an appeal during the state of emergency, within which time is he obliged to file a complaint when the state of emergency ceases? This issue is not specifically regulated by the Regulation.
In connection with this, it has to be pointed out that the provision of Article 3, paragraph 1 of the Regulation stipulates that the deadlines which expire during the state of emergency, which relate to undertaking administrative actions, terminating administrative procedures and deciding on the legal remedies declared, will be considered expired when 30 days after the termination of the state of emergency expires. This provision refers to the deadlines for the administrative bodies (in our example Tax Administration) to undertake certain administrative actions in the tax procedure (eg. 60 days for deciding on appeal, etc.).
With this in mind, the question is whether this provision can be applied by analogy to taxpayers (in the absence of an explicit provision)? In other words, whether the deadlines applicable to taxpayers (for example, the deadline for filing an appeal) that expire during a state of emergency will be considered expired when 30 days have elapsed since the termination of the state of emergency?
If we were to apply this rule by analogy to the deadlines relating to taxpayers, which expire at the time of emergency, in case the taxpayer received the decision on March 14th, 2020 (the deadline expires on March 29th 2020, therefore, at the time of emergency), the deadline for filing an appeal would expire 30 days after the date of termination of the state of emergency.
In conclusion, having in mind that the Regulation does not specifically prescribe the expiration of the deadline for filing the appeal when the decision was received before declaring the state of emergency, but the deadline would expire during the state of emergency, there are three options:
- The deadline expires during the state of emergency and there is an obligation to file the appeal in the deadline prescribed – this would be in collision with the above mentioned Article 2 paragraph 1 of the Regulation which prescribes that the parties in procedures cannot bear the consequences of their failure to act within the deadlines prescribed or determined in accordance with the laws regulating general administrative procedure or special administrative procedures. That being said, in the event that an appeal filled immediately after the end of state of emergency is rejected as untimely, the taxpayer could invoke the above mentioned Article 2 paragraph 1 of the Regulation;
- The deadline expires 30 days after the termination of the state of emergency expires, if we were to apply analogy from Article 3, paragraph 1 of the Regulation, referring to deadlines in which the administrative bodies are to act – said Article explicitly refers to administrative bodies and an analogy cannot be applicable.
- All of the deadlines are stayed during the state of emergency and continue where they were left of on the day of termination of the state of emergency – this would be the most likely interpretation of the above regulations for deadlines, however, it is not explicitly stated.
In connection with our example regarding administrative procedure before Tax Administration, it is important to note that the provision of article 3a of the Regulation provides as follows:
“In the procedures for determining, paying, collecting and controlling the public revenue of tax and taxpayers, the application of this Regulation shall be limited solely to the deadlines for filing remedies against first instance decisions and conclusions of the competent tax and customs authorities.”
In other words, the Regulation does not apply to the deadlines for filing tax returns, which are prescribed by substantive tax laws. Taxpayers are obliged to file their tax returns within the prescribed deadlines as well as to pay taxes within the prescribed deadlines.
How does the Regulation affect the deadlines in procedures before the Business Registers Agency?
The provisions of this Regulation shall also apply when assessing the timeliness of registration applications, appeals and other legal remedies before the Business Registers Agency.
In accordance with the Regulation, some deadlines prescribed by the Companies Act (“Official Gazette of RS”, No. 36/2011, 99/2011, 83/2014 – other law, 5/2015, 44/2018, 95/2018 and 91/2019, hereinafter referred to as: the Companies Act), which are applicable in the process of registration before the Business Registers Agency, shall be suspended and continue to run from the date of termination of the state of emergency.
It is important to note that not all deadlines in the Companies Act are deadlines in the sense of administrative procedures, so when it comes to deadlines in civil procedures, such as the deadline for filing a claim prescribed by article 18 of the Companies Act, the Regulation on Deadlines in Court Procedures during the State of Emergency declared on March 15th 2020 (“Official Gazette of the RS”, No. 38/2020) applies.
Therefore, for the procedures before the Business Registers Agency, the Companies Act prescribes deadlines for registration of:
– continuation of activities in case of death or loss of legal capacity of the entrepreneur referred to in Article 91,
– decisions on the reduction of the share capital referred to in Article 147,
– increase of share capital of joint stock company by way of new contributions from Article 300,
– increase of share capital of the public joint stock company out of net assets of the company referred to in Article 305,
– decision on the reduction of share capital of joint stock company under Article 314,
– minutes of the General Meeting of Assembly of joint stock company referred to in Article 363,
– status changes from Article 504,
– decision on compulsory repurchase of stocks referred to in Article 515,
– the initial liquidation report referred to in Article 536, – the annual liquidation report referred to in Article 537.
Also, the Companies Act in individual articles refers to the Law on Registration Procedure at the Business Registers Agency (“Official Gazette of RS”, No. 99/2011, 83/2014 and 31/2019), which stipulates in Article 10 that applications for registration shall be filed to the Business Registers Agency within 15 days from the date of occurrence of the data or document that is the subject of registration, or change of the registered data or document, unless otherwise provided by law.
All of these deadlines shall be interrupted and shall continue to run from the date of termination of the state of emergency.
Procedures before the Republic Geodetic Authority in cases where the decisions have already been delivered to the parties as participants in the procedure before the state of emergency are carried out as described above. However, in accordance with the Regulation, the decisions issued by the Republic Geodetic Authority during the state of emergency are not being signed and delivered to the parties, since the decisions cannot become final, bearing in mind that the parties can file an appeal or claim after the statutory deadlines. This applies to the inscription of mortgages, liens, purchase contracts, and all other documents on the basis of which the inscription in real estate cadastre is being performed.