Subsidiary constitutional complaint against revision decision concerning tax remission; no standing to raise arbitrariness complaint on remission point, complaints regarding duration of proceedings, independence and free legal aid unfounded

Facts

Parties and instances: The spouses [A.A.] and [B.A.] (the taxpayers) were resident for tax purposes in the Canton of Aargau in the tax periods 2016 to 2018. The opposing party is the Cantonal Tax Office Aargau. The prior instance was the Special Administrative Court of the Canton of Aargau, Tax Division.

Initial situation: For the tax periods 2016 to 2018, there were outstanding cantonal and municipal taxes, finally assessed, totalling CHF 45'531.30. The taxpayers applied for remission on 1 April 2019 and 5 April 2019. The municipality of residence rejected the remission application on 13 May 2019 but granted a temporary deferral.

First decision (20 May 2020): The Special Administrative Court dismissed the appeal. Neither remission nor payment relief was to be granted. Remission failed for lack of the required symmetry of sacrifice (§ 230 para. 2 StA/AG), since the other third-class creditors had not waived their claims in whole or in part. This decision was not challenged and became final.

Revision application: On 1 July 2020 (postmark), the taxpayers applied to the Special Administrative Court for revision and remission. By decision 3-RB.2020.6 of 13 October 2020, the court dismissed the application insofar as it was admissible. Insofar as the submission was to be treated as a request for reconsideration, it referred the matter to the municipality of residence. The court held that only genuine novae could constitute grounds for revision; the taxpayers had merely criticised the legal assessment. Genuine novae (the divorce that had been initiated, the alleged willingness of the third-class creditors to waive claims) established a right to reconsideration under § 39 para. 2 VRPG/AG.

Proceedings before the Federal Supreme Court: By submission of 13 November 2020 (postmark 15 November 2020), the taxpayers lodged what they termed a 'Beschwerde in öffentlich-rechtlichen Angelegenheiten - Subsidiäre Verfassungsbeschwerde' (appeal in public law matters - subsidiary constitutional complaint) and requested that the revision decision be set aside and remission granted. The presiding judge dispensed with an exchange of written submissions (Art. 102 para. 1 FSCA).

Complaints of the taxpayers: They complained of excessive duration of proceedings (13 May 2019 to 20 May 2020), the failure to grant free legal representation, the lack of independence of the Special Administrative Court (advice and pressure from the prior instance, prejudgment through the debt enforcement proceedings), and the impermissibility of the symmetry of sacrifice requirement.

Main question: Whether the appeal is admissible, in particular whether the subsidiary constitutional complaint is available and whether the taxpayers have standing to raise an arbitrariness complaint on the remission point, and whether the complaints under Art. 29 Cst. are well founded.

Considerations

Admissible remedy: Substantively, the matter concerns tax remission, even though formally a revision decision is challenged. Under the principle of the unity of proceedings, this character extends to subsequent appeal proceedings. The ordinary appeal in public law matters is therefore not available, since neither a question of fundamental importance (Art. 83 lit. m FSCA) nor a particularly significant case has been asserted or is apparent. The subsidiary constitutional complaint (Art. 83 lit. m in conjunction with Art. 113 ff. FSCA) remains to be examined, by which only the violation of constitutional individual rights may be complained of (Art. 116 FSCA), subject to the qualified duty to raise and substantiate complaints (Art. 117 in conjunction with Art. 106 para. 2 FSCA).

No arbitrariness complaint on the remission point: Cantonal tax law (§ 230 para. 1 StA/AG) does not confer a legal entitlement to deferral or remission. A taxpayer is therefore not affected in legally protected interests by an allegedly arbitrary interpretation or application of cantonal law (Art. 115 lit. b FSCA) and cannot raise arbitrariness complaints on the remission point. The substantive complaints, namely concerning the symmetry of sacrifice, are therefore not to be entered upon. Challenging the decision of 20 May 2020 is also inadmissible, since only the revision decision of 13 October 2020 is the subject matter of the dispute.

Formal denial of justice (Star practice): Procedural complaints are admissible only insofar as they amount to a formal denial of justice, such as refusal to entertain an appeal, lack of a hearing, lack of requests for…