Supreme Court clarifies rules of evidence for postal delivery | Deloitte Nederland

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Supreme Court clarifies rules of evidence for postal delivery

It is unclear to which postal carrier the decision on the objection was sent. As the dispatch of this postal item has thus become implausible, the notice of appeal was lodged on time.

29 June 2022

Evidence framework

Time limits in tax law often lead to evidence issues, such as if the Tax Inspector claims to have sent a tax assessment or decision on time but the taxpayer states not to have received it. To this end, the Supreme Court has set up an evidence framework, which essentially means the Tax Inspector is the one who needs to make plausible that an assessment or decision has been sent to the correct address. If they succeed, the court will apply a presumption of receipt. Any taxpayer who files an objection or lodges a notice of appeal after the statutory period has expired and argues that they did not receive the disputed decision, must provide facts and circumstances based on which this receipt must reasonably be doubted. The Tax Inspector will then need to provide further evidence.

Notices of objection and appeal against (in part) a penalty imposed and which have been submitted before 1 August 2019, are subject to stricter rules of evidence. In these cases, the Tax Inspector must convincingly prove the dispatch of the decision. Recently, the Supreme Court further detailed the above rules of evidence.

Dispatch implausible

The case concerned a taxpayer who was imposed an additional VAT assessment with a penalty, over the period from 1 January 2013 to 31 December 2014. On 19 October 2018, the Tax Inspector issued a decision on the objection. On 12 July 2019, the interested party lodged a notice of appeal, which the court had declared inadmissible on the grounds that the time limit had been exceeded. The interested party objected to this and argued they had never received the decision on the objection. The court, however, considered it plausible that the decision on the objection was sent to both the interested party and to their authorised representative. On top of this, because the Tax Inspector had informed them of the decision on the objection by telephone, the interested party had been aware of its existence since December 2018. Hence, the objection was declared unfounded.

The interested party did, however, get a response from the Supreme Court, since the documentation provided by the Tax Inspector failed to clearly show to which postal carrier the decision on the objection had been sent. Hence, it was implausible, let alone convincingly proven, that this postal item had been sent. Since the notice of appeal was submitted before 1 August 2019, such convincing evidence is required for imposing a penalty.

Notice of appeal submitted on time

It was concluded that since the decision on the objection was not published in the prescribed manner, the appeal period did not start until the interested party had seen a copy of the decision on the objection. The fact that they were already aware of the existence of this decision does not alter this.

The Supreme Court established that the interested party had not yet received a copy of the decision on the objection on 12 July 2019 (the date on which the notice of appeal had been submitted to the court). Accordingly, the notice of appeal could not have been submitted too late. The Supreme Court declared the objection well-founded and referred the case back to the court for a review of the substance of the case.


Source: HR 17 June 2022, 20/02700, ECLI:NL:HR:2022:875

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