Lawyer Carlijn van Dijk regularly faces the Tax and Customs Administration in court. She often has to ‘push and pull hard’ to get the whole file on the table. “Sometimes you have to make a lot of effort to get documents in the procedure that are exculpatory.”
“Then you are one-nil behind”, lawyer Mark Hendriks supports her. Hendriks also often has to fight to get information from the Tax Authorities. “To give an example: in a case I have been working for four years to get a file that deals with FIOD documents. We know they are there, but we don’t get them.”
“It looks as if the Tax and Customs Administration believes that they can determine what the documents of the case are,” says tax lawyer Marco Bik. “However, that is not up to them, it follows from the law. Fortunately, judges are increasingly done with this.”
Tap the fingers
Lawsuits are regularly conducted about the question whether all relevant documents are included in a file. Sometimes the judge gives a firm tap on the fingers of the Tax and Customs Administration. In one case last year, for example, the judgment was that the tax authorities ‘seriously violated the good legal order’ by withholding documents, and in several other cases additional assessments were canceled for that reason.
“That in a number of situations there is discussion about the documents relating to the case, which is correct,” says responsible State Secretary Van Rij of Finance. “But it’s not like everything goes wrong. I really want to contradict the image that this would be commonplace, because it just isn’t. Any statement is one too many, but we shouldn’t blow it up.”
Too often
According to professor of tax law Jan van de Streek, the number of examples is too large to speak of incidents. “It just happens too often.” He fears that it can never be completely changed. “It’s a matter of mentality. This lack of openness and transparency is in the DNA of the Tax and Customs Administration.”
The Tax, Customs and Allowances Inspectorate says it is aware of a series of examples in which the Tax and Customs Administration has not properly complied with the procedural rules. “The result is that files are submitted to the court incomplete,” says Inspector General Bart Snels.
“We have no insight into the reasons behind this and it is unclear on what scale it occurs. But these kinds of signals are of course worrisome.” The Inspectorate is investigating this further.
Lower abdomen
Lawyer Touria Khidous also often spends a lot of time and energy to complete files. “We still see information being withheld or obscured every day. You often find out by chance. Then my gut says: this is not right, I have to dig.”
It then takes a lot of digging to get all the information on the table, says lawyer Marloes Lammers. “In one of my files I had to pull for a year and a half to get exculpatory documents to the surface,” says Lammers.
Experience
State Secretary Van Rij says in response to all criticism from lawyers: “That is their experience in their cases.” He maintains that most of the time things go well.
“There are 23,000 appeals. If it were in all 23,000 appeals as they are now proposing, we would have a very big problem. And that is not the case. But again, I take very seriously what has been raised.”
Court rulings
Section 8:42 of the General Administrative Law Act (Awb) prescribes that the Tax and Customs Administration must submit ‘all documents relating to the case’ to the court in tax matters.
Pursuant to Article 8:29 Awb, the Tax and Customs Administration can invoke the confidentiality of certain information if there are compelling reasons for doing so.
If a party, for example the Tax and Customs Administration, fails to comply with its obligations, the court can impose sanctions (article 8:31 Awb).
In a ruling of 4 May 2018, the Supreme Court further formulated what should be understood by ‘documents relating to the case’. According to the Supreme Court, if it appears during the handling of a case that this obligation has not been met, it is for the court to determine what consequences this should have. If it turns out that the file is incomplete, the judge often does not attach any consequences to it, as jurisprudence shows. But in some cases it is reason to quash an imposed assessment.
In 2022, many lawsuits were filed again that revolved around the question of whether the Tax and Customs Administration had put all relevant information on the table. Some examples:
