clr/1987/1987_3_1789.pdf

(5)— Self-employed person — Whether entitled to demand that his social insurance contnbuhon be calculated on the basis of income of his own choosing, which is not his real income and islower than the lowest amount of income specified by thesaid law for such person $ occupation category — Question determined m the negative 15 The Director of Social Insurance informed the applicant a self-employed person, that as he was not satisfied that the latter's real income is lower than the lowest amount of incomespecifiedbytheSocial Insurance Legislation for applicant's occupational category, he was obliged to demand payment of socialinsurance contnbutions. on thebasisof the lowestamount specifiedby theafpresaidlegislation,forapplicant's occupationalcategoryandnot on the basis of the amount of income, as specified by the applicant at a level lower than the saidlowest amount 20 Held, dismissing the recourse

(1)Applicant's submission that section 73

(1)10 of Law 41/80, as amended by Law 48/82, gives him the unquestionable right to choose any income on the basis of which his social insurancecontnbutionsaretobecalculated,evenifsuchincome islower than Ihe specifiedlowest income for his occupational categoryand even if such 10 income ύ nothis realincome,cannotbeaccepted

(2)Regulation 18

(5)of the relevant Regulations provides that a selfemployed person can choose to pay social insurance contributions on the basis of an income lower than the lowest income provided for his 1789 Angelide* v. Republic

(1987)occupational category only in case he satisfies the respondent Director that such income ishisreal income

(3)Consequently the applicant was not entitled to demand that his contnbutions be made on the basis of an income, which was not his real income and was lower than the lowest amount of income specified for applicant'soccupational category bythe Social Insurance Legislation. 5 Recoursedismissed No orderastocosts Recourse. Recourse against the decision of the respondents to impose on 10 applicant the payment of social insurance contributions on the basisofhisspecified undertheSocialInsuranceSchemeincome. Applicant appeared in person. CI. Antomades, Senior Counsel of the Republic, for the 15 respondents. Cur.adv. vult. TRIANTAFYLLIDES P. read the following judgment. By the present recourse the applicant challenges, ineffect, thevalidityof the decision of the respondent Director of Social Insurance 20 Services, dated 15 September 1984, to impose on him the payment of social insurance contributions on the basis of his specified under the relevant Social Isurance Scheme income. The applicant seeks, also, a declaration that the refusal of the respondent Director to accept the payment of social insurance 25 contributions on the basis of the income stated bythe applicant is unconstitutional. The applicant is a self-employed advocate and by virtue of sections3 and 12oftheSocialInsurance Law, 1980(Law41/80), as amended by the Social Insurance (Amendment) Law, 1982 (Law48/82) and bytheSocialInsurance(Amendment)Law, 1983 3 0 (Law 11/83), he is obliged to pay contributions to the Social Insurance Fundenvisaged bySection 69ofLaw 41/80. By virtue of section 73

(1)of Law 41/80, as amended, and regulation 18 of theSocial Insurance(Contributions) Regulations 1790 3C.L.R. An««lid«av.R«p«bBc TriantafyUkUsP. of 1980-1982 all self-employed persons are classified into occupational categories,whicharesetoutintheScheduletosuch Regulations; and for every occupational category there is specified a lowest amount of income on the basis of which 5 contributions are tobe paid. Under regulation 18

(5)of the aforesaid Regulations a selfemployedpersonwhoassertsthathisrealincomeislowerthan the lowest income specified for hisoccupational category hasa right to submit an application to the respondent Director claiming to 10 paysocialinsurancecontributionsonthebasisofhisrealincome. On 24 January 1984 the applicant addressed a letter to the respondent Director informing him that for th*i purposes of the Social Insurance legislation he had chosen as income a lower amount than that provided as the lowest income for his 15 occupational category-namely the amount of£32per week -and applied that the social insurance contributions payable by him shouldbecalculatedonthebasisofsuchamount. Itistobe noted thatinastatement madebyapplicant insupport ofhisapplication on 4 September 1984 it was made abundantly clear that the 20 income chosen by him wasnot hisrealincome but lessthan that. On 15September 1984theDirectorinformedtheapplicantthat ashewasnotsatisfied thatthe applicant'srealincomefor purpose ofsocialinsurance waslowerthanthelowestincome specified for hisoccupational category he was obliged topay social insurance contributions on thebasisof thesaid lowest income;and then the 25 applicant filed hispresent recourse. Ithas been contended by the applicant that section 73

(1)(f) of Law 41/80, as amended by Law 48/82, gives him the unquestionable right to choose any income on the basisof which hissocialinsurance contributionsaretobecalculated,evenifsuch 30 income is lower than the specified lowest income for his occupational category and even if such income is not his real income. By means, however, of regulation 18

(5)of the relevant Regulations itisprovided thataself-employed person can choose 35 to pay social insurance contributions on the basis of an income lower than the lowest income provided for his occupational 1791 TrlantafpUide· P. Angellde·v.Republic

(1987)categoryonlyincase hesatisfiestherespondent Directorthatsuch income ishisreal income. Consequently, inviewofthesaidregulation 18

(5),which,inmy opinion, on the basisof a proper interpretation ofsection 73

(1)(f) oftherelevant legislation,cannotbefound tobeultraviresthesaid 5 section 73

(1)(f), it was not open to the applicant to act as he has done in the present case and the respondent Director could have examined an application of the applicant for exemption from the obligation topaysocialinsurancecontributionsonthebasisofthe lowestamount specified forhisoccupational category onlyifsuch 10 application had been made in relation to the real income of the applicant. 1cannot accept that itwasever the intention of the Legislature, in enacting theaforementioned section 73

(1)(f),toafford toaselfemployed person the right topay social insurance contributions 15 on the basis of any income that he might choose, even if such income is lower than the lowest income specified for his occupational category and lowerthan hisreal income. Itfollows in the light of allthe foregoing, that byhisdecision of 15September 1984 the respondent Director rightly rejected the 20 applicant's aforementioned application dated 24 January 1984 and, consequently, none ofthereliefsclaimed bytheapplicant by hispresent recourse can be granted tohim. In the result the present recourse fails and it is dismissed accordingly; but with no order asto itscosts. Recourse dismissed. No orderasto costs. 1792 25