Mostafa Rezaei; Assadalloh Yavari
Abstract
Extended Abstract Introduction Public Procurement involves a large amount of government economic activity, and because they are financed from the public budget, the principle of transparency must rule to them. Transparency is an important element in public procurement policy and law. Particularly ...
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Extended Abstract Introduction Public Procurement involves a large amount of government economic activity, and because they are financed from the public budget, the principle of transparency must rule to them. Transparency is an important element in public procurement policy and law. Particularly given the socially significant nature of the system needed for the proper use of public money by all public institutions and commercial companies, the basic principles governing such spending should be well defined, and the most important of these principles is transparency. In all aspects of public procurement the public sector can influence the market structure, affect the competitive process between the market participants, and affect significantly the economic behavior of the participants in procurement processes. As a rule, contracting authorities rely on the competitive environment in public procurement to achieve the most efficient use of their budgets. They are interested in buying goods and services at low prices and of high quality, since their resources are usually more constrained than the needs to be met. In a market economy, an effective competitive process can lead to lower prices or higher quality, or more innovation in the goods or services offered. So transparency promotes competition, guarantees equality and equal treatment prevents corruption and achieves legal certainty. Therefore, one of the most important reasons for legislation in this area is transparency. In general, transparency in public procurement includes six rules: 1. Advertising contracts throughout the country, 2. Establishing competition among tenderer’, 3. Excluding tenderer from participating in the tender only for legal reasons, 4. Observance of time periods in different stages of the tender to ensure the presence of all companies in the tender, 5. Awarding the contract based on the results of the competition based on the criteria mentioned in the law and contract notice, and 6. Informing the decisions about the tender to the tenderer. However, despite the fact those more than two decades, enacting of the public procurement law in Iran, an analysis of this law and its regulations in the light of the rules of the World Trade Organization and the European Union show that public procurement in Iran has many weaknesses in terms of transparency. Theoretical framework This study first of all analyzes the relationship between the transparency principle and other principles of public procurement like equal treatment, competition and integrity. Then, the relationship between the transparency principle and confidentiality and protection of trade secrets is discussed. Finally, we focus on elements of transparency in public procurement like a publication of laws and regulations, documentation, a publication of contract notice and contract award notice, access to all information and documents about the process of procurement and access to verdicts of the judicial and quasi-judicial authorities. Methodology This study attempts to answer the main questions of this research based on the descriptive-analytical method by criticizing and analyzing laws and regulations regarding public procurement with a comparative study of European Union and WTO law. Results & Discussion Analysis of laws and regulations regarding public procurement regulations in the light of the rules of the WTO and the European Union show that public procurement in Iran has many weaknesses in terms of transparency, including the lack of obligation to announce cost in the contract notice, lack of clear criteria on the proliferation of newspapers, lack of obligation to inform qualitative selection, the non-publication of regarding regulations and verdicts of judicial and quasi-judicial authorities and lack of contract award notices. So these elements of transparency there aren’t in public procurement law and its regulation of Iran and these rules should be amended. This situation provides grounds for increasing corruption in public procurements and hurts to integrity of public procurements. In addition to, rights of tenderer might be violated in this circumstance. Therefore, in addition to documenting and protection of tenders’ information, it is necessary to inform the public and access information. In fact, the purpose of transparency and documentation is to make people aware of the events so that they can hold officials and executive bodies accountable based on this awareness. Also, information about tenders is important in terms of tenderers' rights in order to ensure the integrity of the procurement process; otherwise they can use this information to claim the right. So, to make transparent of public procurement process, it is necessary to document and inform this process, publish all laws and regulation, publish contract notice and contract notice and all information and documents about the process of procurement and verdicts of the judicial and quasi-judicial authorities is accessible. It should also be noted that transparency governs all stages of the public procurement process and that information about that must be equally available at all times. Conclusions & Suggestions According to Findings of this research is necessary to codify and amend the relevant laws and regulations: contracting authorities are required to announce the cost of the transaction in the contract notice; Instead of publishing public procurement in newspapers, they should all be published in a single official system or journal; Qualitative selection criteria should be announced in the contract notice; The verdicts of the judicial and quasi-judicial authorities should be published in this regard and the contract authorities should be required to publish the contract award notices.
Assadollah Yavari; Hamed Edrisian
Abstract
Introduction
In recent years, Iranian government pays more and more attention to the role of taxes as the most significant source of its revenue. Accordingly, it was started amending acts or passing new laws. However, there are different challenges in this path. Collecting taxes on time is one of the ...
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Introduction
In recent years, Iranian government pays more and more attention to the role of taxes as the most significant source of its revenue. Accordingly, it was started amending acts or passing new laws. However, there are different challenges in this path. Collecting taxes on time is one of the main obstacles in Iran and this issue affects the anticipated revenues of the government for annual budget. There are different causes for delay in collecting taxes. Unquestionably, the speed of the tax dispute settlement is one of them. The disputes among taxpayers and tax auditors are inevitable however, from a legal perspective, some factors may prolong the tax litigation process. Therefore, a good structure for settling tax disputes leads to more efficiency for the tax system.
Theoretical Framework
In tax procedure of Iran, if a taxpayer disagrees with assessments of tax, he has the right to protest and Direct Taxes Act provides six levels of dispute settlement. The first step is a pre-trial stage and the taxpayer and the tax authority can settle. If they do not reach a settlement, the taxpayer can bring the case to the Settlement Board of Tax Disputes which have primary and Appellate Stages. The Supreme Tax Council and Article 251(bis) board are two other stages. But, all these tribunals are quasi-judicial. The last stage is Administrative Justice Court. It has the judicial supervision over decisions of previous authorities. It seems that there are some defects in the structure of Tax Dispute Settlement that affect the speed of the tax litigation process. We tend to recognize some factors that cause a reduction in the speed of tax dispute settlement and make suggestions in order to resolve them.
Research Method
In this study, we uses descriptive and analytical methods based on library resource. We also uses case-by-case judgments from the European Court of Human Rights.
Results and Discussion
We present five suggestions. First, there has been predicted specific time for bringing a case to the tribunals in different stages like primary or Appellate in the Civil Procedure Act of Iran. This act governs legal disputes, however, it is known as the main act about the process of dispute resolution. If the relevant acts do not determine the condition of some parts of dispute resolution process in different fields like labour or tax disputes, we usually cite the solution in the Civil Procedure Act in our analysis. The time predicted in the Direct Taxes Act for bringing a case to the tax tribunals or tax dispute resolution are different with the time in Civil Procedure Act without any logical reason. For instance, the taxpayer or the Tax Affairs Office can file a complaint with the Supreme Tax Council, within one month from the date of serving the final decision of the Board of Settlement of Tax Disputes while this time in Civil Procedure Act is 20 days about Supreme Court. With the change of technology, it sounds that the lawmakers can move towards decrease and standardization these periods of time.
Second, there is a pre-trial stage where the tax assessment notice is issued and served on the taxpayer, he may, in case of being unsatisfied therewith, apply personally or through a plenipotentiary attorney to the Tax Affairs Office. The relevant responsible officer shall review the case, after recording it in the respective register. If the taxpayer and the officer reach an agreement in most dispute cases but some dissatisfactions remain, taxpayer has the right to overlook agreement and bring the case to the boards. We suggest removing the possibility of reconsideration in boards about those parts of dispute resolution between taxpayer and tax officer in pre-trial stage and both sides must undertake their agreements.
Another suggestion is about selecting tax judges. Every Settlement Board of Tax Disputes shall consist of three persons from three different institutions. One of them is a judge from the judiciary, whether active or retired, who plays a key role in making the decision, but there is no requirement that he has experience in tax issues or he has passed tax courses. Thus, the process of selecting judges must change.
The fourth challenge is related to the rights to protest for both taxpayer and the representative of Tax Affairs Office. Firstly, the representative of Tax Affairs Office can lodge an appeal against the decision of the primary Board of Settlement of Tax Disputes. This right can be limited to the representative of Tax Affairs Office. Furthermore, the right of the taxpayer in the stage of the Supreme Tax Council can be limited with respect to Article 2 (Right of appeal in criminal matters) of Protocol Number 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms. We recommend predicting the amount of tax in order to removing the Supreme Tax Council competence to hear the protests of taxpayers if their taxes are fewer than that amount.
Finally, Direct Taxes Act predicted a board with specific features called Article 251 (bis) board. In case of final taxes subject to this Act and indirect taxes that are not capable of being reviewed by any other authority, if the taxpayer submits a complaint to the effect that the tax is unfair and provides sufficient documents and evidence to that effect and applies for reconsideration of the case, the Minister of Economic Affairs and Finance may refer the file of the case to a board composed of three persons, whom he shall nominate personally. The decision of the Board shall be conclusive and enforceable when rendered by the majority. This process does not have a clear mechanism and there are no specific regulations which explain how it works or how its members should be selected. We suggest removing this board or create regulations to clarify the mechanism of it and its competence limits to some specific cases.
