The indictment of Podgorica prosecutors, which Jelena Perović to charge for evasion of taxes and contributions, and in connection with the apartment that she bought as a judge on favorable terms and then sold, represents the instrumentalization of the prosecution for political purposes, said yesterday during the closing arguments in the proceedings the defense attorney of the former director of the Agency for the Prevention of Corruption, lawyer Nikola Martinovic.
"This case, by its legal nature, would not deserve any final word because from the facts presented by the prosecutor before this court, it cannot be established in any way that a criminal offense was committed. However, reality shows us that the prosecutor filed an indictment even though there is no evidence for that act. Why was it filed? The reason lies in the personality of the defendant, not in the criminal offense or in the need for criminal legal protection of some social value," claims Martinović.
Last summer, the Basic Court ruled that Perović must repay the state 58.539,7 euros, plus default interest, because she sold an 87-square-meter apartment that she received on favorable terms, but failed to fulfill her obligation and remained in her judicial position for five years. Martinović asked the Higher Court to overturn the Basic Court's decision. The apartment in question is 87 square meters, which the former ASK director bought on favorable terms for just under 32.000 euros, and then sold for 73.000.
During yesterday's hearing, Martinović said that "In the evidentiary procedure, the decision of the tax authority was implemented, which determined that Jelena Perović has no tax liability based on the conclusion of contract UZZ 305/2019.".
"With such a decision by the tax authority, which is still in force today, in a normal state and in normal institutions, the issue of Perović's tax liability would be put to rest. However, the goal and motive of this procedure is not the determination of tax liability, but the discrediting of Jelena Perović, and therefore the decisions of the tax authorities are not important for the prosecution. Bearing in mind that, according to the tax law, only the Tax Administration has the right to determine tax liability, the legal system of Montenegro does not allow either the court or the prosecution to determine a different tax liability for the same factual situation. If the court were to accept the prosecution's concept that the prosecution has the right to determine tax liability in relation to the same factual situation, differently from the tax administration, then this would mean a complete collapse of the legal system. If the court accepts such a concept, then in the future there will be no need to engage doctors to make a diagnosis or determine the type of bodily injury because the prosecution could do that too. According to this concept, the prosecution could decide differently from an expert opinion or to order an autopsy of a living person," said Martinović.
Perović appeared before a judge yesterday Dragan Lubarda reiterated that she did not sell the apartment but rather that she "ceded the rights to purchase the apartment."
"I accept the closing arguments of my defense attorney. I would like to refer to the evidence. The evidence presented at the main hearing undoubtedly confirmed the defense's allegations that in this specific case there is no tax liability and therefore that I did not commit the criminal offense I was charged with... The legal transaction related to the assignment of the right to purchase an apartment under construction. At the time of assignment of that right, the holder of the rights over that real estate was the Basic Court in Cetinje, which is why the person to whom the rights were assigned later, after fulfilling the legal requirements, concluded a contract with the Basic Court in Cetinje, which was the only one suitable for acquiring ownership of the apartment in question," said Perović.
According to her, It is not about selling real estate.
"Therefore, the basic condition for making a decision on determining capital gains, or capital gains tax, has not been met. These allegations of the defense are confirmed by the minutes of the Tax Administration, Podgorica Branch Office, on inspection supervision No. 16/01-3-244/1-2023 of 28 June 6, in which it was determined that there is no obligation to pay capital gains tax. In this regard, I would like to point out that the inspection supervision was initiated ex officio, namely by the act of the Revenue and Customs Administration, Podgorica Branch Office, for determining and collecting tax liabilities No. 2023/16-01-2 of 82 March 29, in which it is stated 'based on our records, we have determined that you have not submitted an annual tax return on the income of natural persons...'. I would like to point out that the notary before whom the preliminary agreement in question was concluded submitted it to the tax authorities, who, on that basis, initiated the procedure for determining tax liabilities, as prescribed in Article 3 of the Tax Law. administration, with the conclusion that there is no tax liability," claims Perović.
The evidence presented at the main hearing undoubtedly confirmed the defense's allegations that in this specific case there is no tax liability, and therefore that I did not commit the criminal offense I was charged with... The legal transaction related to the assignment of the right to purchase an apartment under construction," Perović argued yesterday before Judge Dragan Lubard.
In their closing arguments, the prosecutors emphasized that they stand by everything said in the indictment, but pointed out that "the defense is referring to case law that does not deal with the same legal situation."
"Because no distinction is made between two types of taxes: the payment of tax on real estate, in which case the notary is obliged to submit the corrected deed to the tax authority, which would exclude the defendant's intent to commit a criminal offense, and personal income tax, in which case, as in the specific case, the obligation to report income lies exclusively with the individual, for the purpose of taxation," the prosecutor emphasized. Aleksandra Adzic Zivkovic.
The Perović defense also referred to the fact that this was not a sales contract, but a preliminary contract, in its appeal against the verdict of the judge of the Podgorica Basic Court. Mirza Ademović, according to which Perović is obliged to return more than 58.000 euros to the state.
In his appeal to the Higher Court, Martinović reiterated that "there was no breach of contract, because the notarial deed UZZ No. 05/218 of 11 January 1 is, in its content, a preliminary contract, which cannot constitute rights and obligations, except for the obligation to later conclude the main contract."
58.539 euros, plus default interest, is the amount that, according to the first-instance verdict of the Podgorica Basic Court, Perović should pay to the state for the damage caused during the sale of the apartment in Cetinje. The defense, however, claims that it was not a sale of the apartment, but a transfer of the right to sell, which is why they appealed to the Higher Court.
In the first instance verdict, Judge Ademović emphasizes that "the defendant's thesis was that the contract of sale on favorable terms was, in its content, a preliminary contract."
"If the pre-contract in question does not produce legal effect without the conclusion of the main contract, as stated by the defendant, the question arises as to how she could then transfer the same apartment to a third party and transfer the rights and obligations to that person, i.e. give consent that the buyer can to be registered in the real estate cadastre, and finally, if that legal reason of the defendant stands, the question arises - how would the defendant collect the purchase price from the buyer", the judgment specified.
The state initiated the dispute against the former director of the Agency after the initiative of the Network for the Affirmation of the Non-Governmental Sector (MANS), at the end of November 2022.
MANS then appealed to the institution of the Protector of Property and Legal Interests to request compensation for damages on behalf of the state due to non-fulfillment of the contractual obligation when purchasing an apartment on favorable terms.
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