Third-Party Liability for the Payment of Taxes and Their Fundamental Rights

Abstract

This article examines, from a human rights perspective, certain instances establishing the liability of third parties, other than the taxpayer himself, for the payment of taxes, such as the obligation to withhold taxes or the joint and several liability of a third party (i.e. a company’s director) for the payment of taxes due by another person. Such obligations may imply a substantial liability for taxes and often are coupled with sanctions, and also a liability for the infringement of a growing number of formal obligations, including filing returns and reporting data, raising concerns of compatibility with the fundamental rights of taxpayers and private parties. The authors argue that it is doubtful whether the need to secure a more effective protection of the interest to collect taxes can justify exposing third parties to substantive obligations in connection with taxable events for which they are not directly liable or where no specific involvement of that person in a scheme of tax avoidance or evasion is established. Moreover, such compulsory involvement, which is currently imposed without remuneration and without any consideration of the additional burdens that it creates, raises some concerns from the perspective of fairness. The authors propose that a possible solution to some of these problems in the cross-border scenario could be found by amending the Recovery Directive (2010/24), so that states could rely more on mutual assistance within the European Union and less on third-party liability for the collection of taxes.