Text file: 90.txt
author: cairns
downvotes: 5
end consideration date: 2009-12-12
id: '90'
number comments: 111
number views: 21399
proposal type: Competent authority response
response: "Response from the Office for Religious Communities\nFrom the content of\
  \ the proposal, the Office concludes that the church tax would cover all the current\
  \ obligations of the State towards religious communities (payment of contributions\
  \ for priests, restoration of cultural monuments, etc. - which is a budget expenditure)\
  \ and that the church tax (which is a budget revenue) would be paid by the faithful\
  \ of a particular religious community (its members, e.g. Catholics) for a particular\
  \ religious community (e.g. the Catholic Church), through the individual's current\
  \ tax obligations towards the State.\nThe Office does not agree with such a proposal.\n\
  As a reason for the introduction of a church tax, the proposer states that the current\
  \ regime represents an unfair and unjustified financing of religious communities\
  \ and churches (the expenditure side of the State budget) on the principle of solidarity;\
  \ and that under the current regime, religious organisations are also financed by\
  \ non-believers (both on the revenue side of the State budget); as a solution to\
  \ this problem, the proposer proposes the introduction of a church tax (which would\
  \ represent a new revenue side of the State budget, based on membership of/belonging\
  \ to a religious community).\nThe Office partly agrees with the proposer's reference\
  \ to the current arrangements, but disagrees with the proposed solution (church\
  \ tax).\nThe Office starts by stating that the financing of religious communities\
  \ on the revenue side of the budget does not fall within its competence. The Office\
  \ is responsible for the expenditure side of the budget, namely those regulations\
  \ which allocate budgetary resources to religious communities (laws establishing\
  \ rights, allowing funding on other grounds - public tenders, etc.); in the case\
  \ of the Office, this is the Religious Freedom Act, Official Gazette of the Republic\
  \ of Slovenia 14/2007 (ZVS). The interpretation and drafting of legislation relating\
  \ to the revenue side of the budget (collection of taxes and similar charges), irrespective\
  \ of who is the recipient of the budgetary resources, is the exclusive responsibility\
  \ of the Ministry of Finance.\nThe following is the response of the office which\
  \ is responsible for the expenditure side of the budget, which allows religious\
  \ communities to receive funds from the State budget. After this, the Office, since\
  \ the proposed solution on the revenue side (church tax - which is in principle\
  \ not within the competence of the Office) is based on the affiliation/membership\
  \ of a religious community, which means that the church tax concerns the right/freedom\
  \ of freedom of religion and the principle of separation of state and religious\
  \ communities, which fall within the scope of the Office's work, gives its opinion.\n\
  In its Opinion on the Compatibility with the Constitution of Certain Provisions\
  \ of the Agreement between the Republic of Slovenia and the Holy See on Legal Issues,\
  \ Official Gazette of the Republic of Slovenia, No 118/2003, the Constitutional\
  \ Court stated, inter alia:\n \"7. The Catholic Church does not only act in the\
  \ field of religious matters (res spirituales), but also in other areas of social\
  \ life in which the State has competence (so-called mixed matters - res mixtae).\"\
  \      \"20. [...] One of the essential components of the principle of separation\
  \ of state and religious communities in countries characterised by its strict implementation\
  \ (France, United States, Japan) is that the state does not financially or in any\
  \ other way support religious activities.\"(*19) \"29. Modern states which recognise\
  \ and protect human rights do not regulate the religious life of their citizens.\
  \ The State must allow religious communities to operate freely (Article 7(2) of\
  \ the Constitution) when it comes to the exercise of the constitutional right to\
  \ freedom of conscience. The State must therefore allow individual and collective\
  \ religious freedom to all citizens. Article 41 of the Constitution also guarantees\
  \ full respect for freedom of religion and other definitions in private and public\
  \ life. [...] On the other hand, the Catholic Church also does not claim a monopoly\
  \ position in relation to the State. In secular matters, the Catholic Church respects\
  \ the law of the State and follows it or tries to agree otherwise. A different understanding\
  \ of the relationship between the State and the Catholic Church could only arise\
  \ in areas which the Church, from the point of view of its religious view, considers\
  \ to be religious matters, and the State considers to be secular matters, i.e. in\
  \ the areas of so-called mixed matters, such as public education and marriage. The\
  \ key question is therefore whether Article 1(1) of the Agreement grants the Church\
  \ full freedom of action in so-called mixed areas.\"      \"33. [...] The Catholic\
  \ Church [shall] respect the legal order of the Republic of Slovenia in its activities\
  \ in so-called mixed areas. In doing so, it shall have the right to work within\
  \ the framework of this legal order and by means permitted by constitutional law\
  \ (including efforts to amend the provisions of the Constitution) towards the realization\
  \ of its objectives and to seek cooperation with the State in mixed areas.\"   \
  \   \"34. If the \"principle of independence and autonomy\" is so interpreted [see\
  \ paragraph 33] and the wording of Article 1 of the Agreement is interpreted in\
  \ accordance with that interpretation, that provision of the Agreement is not inconsistent\
  \ with Article 3 of the Constitution. Nor is the 'principle of independence and\
  \ autonomy', so understood, incompatible with Article 7 of the Constitution.\"\n\
  It follows from the above that the Constitution allows for cooperation between the\
  \ State and religious communities in the field of mixed affairs, which means that\
  \ State funding of mixed affairs is permissible. However, cooperation between the\
  \ State and religious communities in the field of religious matters is not permissible,\
  \ and the principle of separation of State and religious communities in Article\
  \ 7 of the Constitution applies in this part.\nThe proposed solution in the expenditure\
  \ part means that religious communities should not, because they receive church\
  \ tax, receive funds that the State would allocate to mixed affairs (e.g. religious\
  \ communities should not apply for funds for the restoration of cultural monuments,\
  \ for humanitarian activities, etc.). As such a restriction would not apply to non-religious\
  \ organisations (other owners of cultural heritage, charitable organisations, etc.),\
  \ such a regulation could constitute a violation of the principle of equality under\
  \ Article 14 of the Constitution. For these reasons, the introduction of a church\
  \ tax with such restrictions on the expenditure side is not permissible; or, if\
  \ the proposed solution does not provide for such restrictions in mixed areas, the\
  \ proposal is contrary to the Constitution and is not relevant.\nThe proposer proposes\
  \ the introduction of a church tax as a solution to the financing of religious communities\
  \ (including religious activities). The Office considers that the introduction of\
  \ the legal institution of a church tax as a real tax - a tax which is a derivative\
  \ monetary income of the State, collected by the State in the public interest on\
  \ the basis of its financial sovereignty, without direct counter-service - is constitutionally\
  \ controversial from the point of view of the principle of the separation of the\
  \ State and religious communities laid down in Article 7 of the Constitution of\
  \ the Republic of Slovenia, or the system of strict separation of the State and\
  \ religious communities. If the church tax (a tax levied on the faithful) is a genuine\
  \ state tax, then the State guarantees its sovereign collection without legal proceedings\
  \ on the basis of a unilateral determination. Article 7 of the Constitution of the\
  \ Republic of Slovenia establishes the principle of the secularity of the State\
  \ (separation of the State and religious communities, equality of religious communities\
  \ and their free exercise), which is characterised by the fact that religious communities\
  \ are legal persons governed by private law. The Office considers that the above-mentioned\
  \ constitutional regulation of relations between the State and religious communities\
  \ places the Republic of Slovenia in the group of countries where the system of\
  \ separation of the State and religious communities, or the system of strict neutrality\
  \ of the State towards religious communities, applies. The introduction of a church\
  \ tax, which implies the use of the State apparatus to collect a tax for a legal\
  \ person governed by private law (a religious community), is not, in the opinion\
  \ of the Office, compatible with the system of separation of the State and religious\
  \ communities, or the strict neutrality of the State. In practice, the church tax\
  \ system is always linked to the public law status of religious communities. For\
  \ example, in the Federal Republic of Germany, religious communities which are legal\
  \ persons governed by private law do not have the right to have church taxes levied\
  \ on them by the State, but only religious communities which have the status of\
  \ organisations governed by public law have that right.\nThe proposed regulation\
  \ is contrary to Article 7 of the Constitution (in addition to the reason set out\
  \ in the preceding paragraph) because the imposition of a church tax would mean\
  \ that the State would place at the disposal of the religious community a coercive\
  \ apparatus for the collection of funds (revenue side) which would enable the religious\
  \ community to carry on both religious and mixed activities (expenditure side).\
  \ This is inconsistent with the above-mentioned opinion of the Constitutional Court,\
  \ and the Office cannot therefore support the financing of religious activity in\
  \ a way that constitutes a violation of Article 7 of the Constitution. The proposal\
  \ also constitutes an excessive interference by the State in the functioning of\
  \ a religious community, as the State would unilaterally prescribe the manner in\
  \ which a religious community is to be financed; such a regulation would also constitute\
  \ a restriction on freedom of religion, as the State would unilaterally determine\
  \ the manner in which the members of a particular religious community are to finance\
  \ that religious community, all of which constitutes a violation of Article 41 of\
  \ the Constitution, which governs freedom of conscience.\nAs the current regime\
  \ uncritically allows for the financing of religious activity, the Office will propose\
  \ an amendment to the legislation (ZVS) in this part. In the light of the above,\
  \ the Office considers that once the State stops financing religious activity (except\
  \ in certain cases - e.g. spiritual care of soldiers on missions abroad, etc.),\
  \ the situation where everyone pays for religious activity \"in solidarity\" will\
  \ cease. The changes will remove the need for state regulation of the financing\
  \ of religious activity on the revenue side, and since the Office has announced\
  \ that it will propose a change in the legislation in this part, the proposal for\
  \ a church tax is not topical.\nThe proposal is also not relevant because it provides\
  \ that an individual would voluntarily choose to contribute a certain proportion\
  \ of his income to a religious community through his tax liability. In this case,\
  \ the State would merely be the provider of a service that is already available\
  \ to any legal or natural person. This service is available from various payment\
  \ organisations (in the form of direct debit) or from the employer (in the form\
  \ of an administrative prohibition). Since the proposal, like the services already\
  \ available today, is based on a voluntary decision by the individual, the Office\
  \ considers that the proposed solution would constitute a reform of an already regulated\
  \ area. At the same time, the Office concludes that it is not aware of any substantive\
  \ reason why the principle of self-financing of religious communities or the possibility\
  \ for members of religious communities to make voluntary contributions to their\
  \ religious communities should be regulated. Voluntary contributions to religious\
  \ communities are a social relationship which is a matter of human freedom. However,\
  \ all of the above shows that the substance of the proposal relates to the expenditure\
  \ side of the budget.\nNotwithstanding the above, it should be noted that there\
  \ is already sectoral legislation in force which provides for a similar solution,\
  \ namely the Income Tax Act, Official Gazette of the Republic of Slovenia, No 117/2006\
  \ and amendments (ZDoh-2) and the Corporate Income Tax Act, Official Gazette of\
  \ the Republic of Slovenia, No 117/2006 and amendments (ZDDPO-2). The two Acts allow\
  \ a taxpayer to allocate 0.5% of income tax for various non-profit purposes (religious\
  \ communities may be among the beneficiaries) - Article 142 ZDoh-2, or to reduce\
  \ the tax base by 0.3% (religious communities may be among the beneficiaries) -\
  \ Article 66ZDoh-2 and Article 59 ZDDPO-2.\nThe two Acts allow for the allocation\
  \ (as well as the non-allocation) of part of the income tax (or part of the tax\
  \ base) to a large number and different types of non-profit organisations. Such\
  \ a solution, since it is based on the State's renunciation of a part of the tax\
  \ revenue and since it is based on a voluntary decision of the individual, which\
  \ is not based on affiliation/membership in a particular organisation, is not, in\
  \ the opinion of the Office, controversial from the point of view of the principle\
  \ of separation of the State and religious communities.  \n \nResponse from the\
  \ Ministry of Finance\nAt the outset, we note that the financing of the activities\
  \ of religious communities is a complex issue, and the discussion on this topic\
  \ requires a comprehensive placement in a constitutional, legal, social and political\
  \ framework. Given that the Office of the Government of the Republic of Slovenia\
  \ for Religious Communities is responsible for issues related to religious communities\
  \ (which, with regard to the proposal in question, on 18.10.2008 issued a decision\
  \ on 18.2008), the Ministry of Finance of the Republic of Slovenia should take note\
  \ of the following 12.2009), our response is limited to confirming the Office's\
  \ position that taxes are un earmarked revenues of the State budget in the Republic\
  \ of Slovenia, and therefore the introduction of a church tax as earmarked revenue\
  \ for the financing of religious communities is not possible in a systemic way.\n\
  Finally, we would like to draw attention to the institution of earmarking a part\
  \ of income tax for donations in accordance with Article 142 of the Income Tax Act\
  \ (Official Gazette of the Republic of Slovenia, No 117/06 et seq.), which allows\
  \ taxpayers to decide on the allocation of financial resources to individual entities\
  \ of civil society, including all religious communities registered in the Republic\
  \ of Slovenia."
response date: 2010-01-07
response due date: null
sent date: 2009-11-12
title: Church tax
upvotes: 45
url: https://predlagam.vladi.si/predlog/90
