Decisions requiring information not contrary to proportionality principle | Deloitte Nederland

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Decisions requiring information not contrary to proportionality principle

In three cases the Supreme Court has ruled that information requested by the inspector is legitimate. This is not contrary to the proportionality principle. The decisions requiring information have been rightfully imposed.

6 May 2020

Since 1 July 2011, inspectors have the option to issue so-called decisions requiring information, to determine that a taxpayer has failed to meet their statutory obligation to provide information. If this decision is irrevocably established, it results in a reversal and increase of the burden of proof. If a Court takes the position that an inspector’s request for information is legitimate, it can allow the taxpayer to as yet provide the information requested to prevent application of the sanction in respect of the proof to be provided. The latter would likewise apply if the Court were to rule that application of this sanction would be disproportionate. Recently, in three proceedings the Supreme Court ruled on the scope of the obligation requiring information of taxpayers and on the decisions requiring information that the inspector had established in this respect.

Accounting records of trust office

In the first case, the inspector had requested a trust office to submit all of its accounting records, to assess whether any taxability in the Netherlands was involved. When no response followed, the inspector imposed decisions requiring information in respect of the corporate income tax assessments over the years 2010 through 2015. The Supreme Court, like the Den Bosch Court, took the position that the inspector’s request is not contrary to the proportionality principle. This is because the trust office had failed to provide any insight whatsoever into the nature and size of the accounting records. Under those circumstances the inspector cannot be expected to restrict the request. What’s more, the trust office had failed to provide reasonable arguments for its risk of criminal prosecution due to violating the duty of confidentiality. The trust office was granted a four week period to as yet comply with the decision requiring information.

Director/shareholder trust office

The second case involved the trust office’s director/shareholder. The inspector took the position that this person resided in the Netherlands and requested a large number of documents, part of which was not provided. In the subsequent proceedings, the interested party argued that the inspector had insufficiently appreciated his interests. The Court partly accepted this argument and declared the decision to be void insofar as it related to the ownership titles requested. Also when requesting information, the Supreme Court considers the inspector to be bound to the principles of proper administration. Specifically in respect of the decision requiring information, the Supreme Court ruled that without any proportionality between the objective of that decision and the related consequences it could not be upheld. However, the Court’s consideration does not signal an incorrect interpretation of the law. In this case, too, the interested party was allowed four weeks to provide the missing information.

Extended additional tax assessment period

The third case again revolved around the residence of a taxpayer (who has since died). The inspector felt this residence had been located in the Netherlands during the years 2004 through 2014 and requested income, asset, activity and bank statements. The Supreme Court confirms the judgment of the Den Bosch Court that the inspector had been reasonable in taking the position that the requested information could have relevance for assessing the deceased’s Dutch liability for tax. The authority to impose an additional assessment does not have to be certain beforehand. The inspector is permitted to also request for information in respect of assessing whether it is possible to impose an additional assessment while applying the extended additional tax assessment period.

Sources:

  • HR 17 April 2020, 19/02021, ECLI:NL:HR:2020:696
  • HR 17 April 2020, 19/02346, ECLI:NL:HR:2020:697
  • HR 17 April 2020, 19/02347, ECLI:NL:HR:2020:698
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