Фикција nasciturusa у (српском) пореском праву
The Fiction of Nasciturus in (Serbian) Tax Law

Author(s): Gordana Ilić Popov
Subject(s): Social Sciences, Law, Constitution, Jurisprudence
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Conceived and yet unborn child; Nacsiturus; Property tax; Inheritance tax; VAT refund; Legal capacity; Legal subjectivity;
Summary/Abstract: The ability to be a holder of rights and obligations arises from birth, but modern legislation have accepted a legal fiction: Nasciturus pro iam nato habetur quotiens de commodis eius agitur, which dates back to Roman law and has found its application in the succession law. Conceived yet unborn child is referred to nasciturus. According to this fiction, the conceived child is deemed to have been born when its benefits are concerned. Under the principle of fairness, the fetus in the mother's womb (if the child is born alive)will have the same succession rights and obligations as the testator's already-born children. The author hypothesizes that an unborn child's conditional and limited legal capacity can be recognized in the tax law, especially in relation to the property tax and the inheritance tax. In addition, she points out that the legal position of the conceived yet unborn child may be relevant in refunding the value-added tax paid when a parent purchases his or her first apartment in Serbia. In order to prevent the use of legal fiction for illegitimate tax avoidance, a special anti-abuse rule should be provided by the tax legislation. This paper is aim to start a discussion about the legal status and capacity of nasciturus in tax law because the issue of its legal subjectivity in terms of property rights and obligations can have practical implications in certain areas of taxation.

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