According to the Azerbaijani Supreme Court, the fact that employment of the company manager has ended eliminates the basis of restricting that person’s right to leave the country as per tax regulations. This “substance over form” conclusion was made in the judgment on case 2-2(102)-517/2022 dated 10 August 2022.
The case is that the tax authority has filed a suit in 2021 for temporarily restricting a person’s right to leave the country due to tax debts of a company. The person is the legal representative of the company according to company register records. However, the appeal court denied the petition based on the fact that notification regarding unemployment of the person was registered in the electronic system of social security authority back in 2015 (reversing decision of the first instance court).
Supreme Court judgment states the following:
Since unemployment of the person was realized as per employment legislation, failure of tax payer [company] to notify tax authority about changes in registry information as per taxation and company register regulations does not change the fact that the person is not manager of the indebted company.
Article 23.1.15-3 of the Tax Code sets out the right of the tax authority “to apply to the court for temporarily restricting the right of the manager of a legal entity to leave the country”. The Supreme Court determined, by affirming the conclusion the appeal court reached, that if a person is not an employee as per employment legislation, he or she cannot be a legal representative in the sense of tax regulations either. Although this is not obvious from text of the laws, it should be considered that documents determined in employment legislation such as employee appointment order is required when a legal representative is registered in the company register. This means that employment relation between legal representative and company is essential in this context.