District Court must observe specific rules when using fax communications | Deloitte Nederland


District Court must observe specific rules when using fax communications

The Supreme Court rules that the District Court should have sent the authorised representative an advance notification about its decision to send a fax in which it sets the period for sending the substantiation of the notice of appeal.

4 April 2018

Legal remedies

Taxpayers who disagree to a tax assessment imposed on them, to a loss assessment for a year, or to the WOZ value of their house, can file a notice of objection with the inspector or the local tax officer, respectively. Any decision rejecting such objection is open to an appeal with, successively, the District Court, the Court of Appeal, and the Supreme Court.

Establishing a legal remedy is bound by very strict rules, though. The law includes provisions on the contents of a notice of objection or appeal (name and address details, date, description of the disputed decision, and substantiation) and the period within which it must be filed. Any failure to observe these provisions can ultimately lead to a declaration of inadmissibility, meaning the substance of the objection or appeal will not be discussed.

Rectifying an omission

Before an administrative body or court is permitted to issue a declaration of inadmissibility, interested parties must be given the opportunity to rectify any omission in a notice of objection or appeal (e.g., by as yet submitting a substantiation). Initially, the Tax Administration applies a rectification period of four weeks. If a response is still forthcoming taxpayers are given another, final period of two weeks to respond, with the inspector stating that the objection will be declared inadmissible if the omission is not rectified within that period. The judiciary applies stricter rules for interested parties in that it applies a one-off period of four weeks (District Courts and Courts of Appeal) or six weeks (Supreme Court). Still, a recent judgment shows that such a period must be set with due care.

Using fax communications

This specific case involved an authorised representative who had filed a pro forma notice of appeal on behalf of its client, against the decision on an objection relating to a WOZ decision by the local tax officer. On 10 February 2017, the District Court had, by fax, set a period of four weeks for substantiating the notice of appeal and sending an authorization. Since the authorised representative failed to respond within the period set, the notice of appeal was declared inadmissible on 14 April 2017.

The authorised representative resisted by stating that he had never received the 10 February 2017 fax. Unlike the District Court, the Supreme Court was sensitive to his arguments. The General Administrative Law Act stipulates that the Administrative Court should basically send court documents by letter. Although the law offers the possibility to deviate from this, using fax communications requires specific guarantees to ensure these documents are given the same attention as postal items of judicial authorities. This is why the Supreme Court stipulates that any Court that wants to use fax communications to set a period for rectifying a potentially fatal omission, must give advance notice.

According to the Supreme Court, in this specific case the District Court had definitely not informed the authorised representative in advance of its intention to use fax communications to set a period for substantiating the notice of appeal and sending an authorization. Hence, the District Court had wrongfully declared the notice of appeal to be inadmissible.

Source: HR 30 March 2018, 17/04403, ECLI:NL:HR:2018:458

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