My reading of the new immigration tax rule
(Revised text of 24 July 2018.. Please discard any earlier version)
(This is not a formal legal advice! Ask your professional lawyer when planning your supporting activity. This is simply a quick first reading, with which the tax authority – when it realises the loopholes – will certainly not agree.)
- I base my analysis on the „bill submitted to the president for signature (T/625/27 of 23 July 2018) which was voted on 20 July 2018. Section 253 deals with the immigration tax.
- The law is incompatible with the rule of law,, but its impact can only be understood after a close reading.
- The subject of the tax is not the activity enhancing/supporting immigration (bevándorlást segítő tevékenység) but the support of this activity (by another actor).
- Tax subject in the first row is the supporting organisation (if it is not exempted /see point 7/).
However, if the supporting organisation does not hand over a statement about it having a declared (and paid) within 15 days from the grant of the support its special immigration tax obligation, then the supported organisation has to pay it.
The supported organisation must be „an organisation” which
- either has its seat in Hungary
- or is active in Hungary (a later para of the same section only speaks of those organisations that have a seat in Hungary, so the text is unclear)
5. What qualifies as activity enhancing/supporting immigration?
There are conjunctive criteria
a) It must be a „program, action or activity, that directly or
indirectly that is aimed at promoting immigration”
and
b) that „program, action or activity” must manifest itself in
one of four types of activity, namely
- conducting media campaigns or media seminars or
participating in hem;
- organising education
- building or operating a network;
- propaganda activity presenting immigration in positive light.
6. The definition of immigration is "the intended final resettlement/migration („áttelepülés”) of people from their country of residence to another country”. EU citizens and others enjoying the freedom of movement within the EU are not subject to the rule.
7. Exempt from the tax is any party or any foundation established by a party or any international organisation enjoying immunity.
8. There are two bases of the tax: a) the support given to the immigration supporting activity of any organisation
b) the support to the operation of immigration supporting organisations
9 The tax amounts to 25 % of „the sum of the support” if the donor pays, or of the „cost of the immigration supporting activity” if the supported organisation pays the tax in lack of the declaration of the donor.
A few comments
* Asylum seekers or refugees do not have the intention to finally settle in the country, so strictly speaking any activity related to asylum seekers and refugees is not subject to the act.
* Not all immigration supporting activities are subject to the tax. Only the narrowly defined actions:
- media campaigns or seminars (so not an interview, or even a series of documentaries),
- organising education, (that is tricky: are „education” and „organising education” as activities different? One may argue, they are. What is clear that educators themselves (professors, trainers are not subject to any type of tax for teaching. )
- building and operating a network (it is nowhere defined what that means, but the criminal law on enhancing and assisting illegal immigration uses it as one form of „organisation”,
- presenting immigration in „positive light”. That means any balanced presentation of immigration presenting positive and negative aspects ought to be outside of the scope of the tax.
* The key is the narrow definition of immigration: the requirement of the final resettlement/migration (áttelepülés). That in Hungarian means that the intention of the migrant is to live in the destination country until death. Any other form of migration (and support of it) is again outside the scope of the law. Guestworkers, studies, research etc. are NOT immigration as defined by the Act, so promoting them is not an activity, the support of which is subject to taxation.
* The tax only applies to external support. If the „promoting organisation” has its own income/resources then self-financing is not taxable. So if it sells products, offers services, or sells its assets, then that income devoted to the promotion of immigration is not taxable.
* Individuals supported are not within the scope of the law, only organisations. Any scholarship, research grant etc, given to an individual personally is not subject to the tax.
* Any money coming from UNHCR, other UN bodies, OECD, OSCE, not to speak about the EU are also exempt as they enjoy immunity (Are exempted from taxation).
* Any party (domestic of foreign, in parliament or outside of it) and any party-foundation can freely support. So all the great German party foundations (Friedrich-Ebert, Konrad Adenauer, Heinrich Böll) are exempt - neither they, nor the supported organisations have to pay. Any small Hungarian party, newly established (or its foundation) may become the donor of all the pro-migration organisations.
* Any support given to an organisation, among others involved in the taxable activity, but given for its other activity probably is outside the scope of the law. So if an organisation is engaged in migration, human rights and non-discrimination and gets support for the latter two, that is not taxable. (The law is not clear: on the one hand it speaks about support to the operation of the organisation on the other it refers to the costs of immigration supporting activity of the supported organisation as the basis of the tax, obviously not extending to the costs of any other activity of the organisation.)
* Teaching refugee law, migration law or their social, anthropological etc. aspects of migration are probably not within the scope of the law. The law did not use the term „education”, so ought not to cover courses in a large educational institution. It chose the term „organisation of education” (oktatásszervezés). Therefore it may be understood as covering ad hoc courses, trainings where not the teaching, but the organising element is decisive. But then the cost of teaching should be exempt only the cost of getting to the teaching could be seen as organising. The amendment to the bill adding „organisation of education” to the activities was introduced on 13 July in the summarising proposal of amendments submitted by the legislative committee (T/626/22) and in its explanatory note mentions the addition but does not explain why that was deemed necessary.
re to edit.