Decision on objection must be done in writing | Deloitte Nederland


Decision on objection must be done in writing

So far, objection proceedings are exempted from the mandatory electronic data interchange. Hence, for reasons of legal certainty decisions on objections must be sent by mail too.

30 May 2018

Electronic Data Interchange Act

The Electronic Data Interchange Act Tax entered into effect on 1 November 2015. Ever since, all communications with the Tax Administration are assumed to take place electronically (art. 3a State Taxes Act). A phase-in model has been chosen to ensure a smooth digitisation process: step by step an increasing number of reports can only be sent digitally. Examples of this process include taxpayers who only receive digital invitations to file their personal income tax returns and requests for dividend withholding tax refunds and supplementary VAT returns that can only be filed electronically. Entrepreneurs (whose profits are liable for income tax or corporate income tax) are subject to a specific procedure, according to which both tax returns and requests for (revision of) preliminary assessments must be filed digitally.

Exception for objection proceedings

Messages related to objection proceedings have so far been excluded from mandatory electronic data exchange. This regards both taxpayers who file notices of objection and inspectors who take decisions on objections. Recently, the Supreme Court ruled that as a result of this the period for lodging appeals with a district court does not start until the inspector has given a written decision on an objection.

The specific case involved a taxpayer on whom additional tax assessments for income taxes and national insurance contributions were imposed for the years 2009 through 2011. In response to the objection filed against this, the inspector gave a decision on the disputed years on 21 December 2015 and sent it to the taxpayer’s consultant by e-mail. In doing so, it was announced that the decisions would be sent by regular mail as well.

The district court ruled that the appeal lodged against the imposed additional tax assessments on 15 March 2016 was inadmissible because the six weeks’ period had been exceeded. It held that, given the multiple mail communications with the authorised representative, the inspector could assume this person was sufficiently easy to reach through electronic means. Having ascertained that the decisions on the objection were emailed to the consultant on 21 December 2015, the inspector did not need to demonstrate that they were sent by regular mail, too.

Written decision on objection is mandatory

This judgment could not be upheld on appeal, though. The Supreme Court considers that the district court had been wrong in failing to ascertain whether the inspector had taken a decision on the objection in writing as well. With objection proceedings being excluded from mandatory electronic data interchange with the Tax Administration, legal certainty demands that the appeal period does not start until after the decision on the objection has been sent to the taxpayer or his authorised representative by regular mail. Not until that date will the decision have been made according to the procedure prescribed.

So, although art. 3a State Taxes Act and the related Regulation on electronic data interchange does not prohibit inspectors from taking a decision on an objection through electronic means, they must always also notify taxpayers about a decision in writing. At least, in any case as long as the exception for objection proceedings is still effective.

Source: HR 25 May 2018, 17/02663, ECLI:NL:HR:2018:758  

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