Cassation proceedings before the Supreme Court
After the Court of Appeal has rendered judgment, the question arises whether there’s any point in filing a cassation appeal. It’s often thought that conducting proceedings before the Dutch Supreme Court has a low success rate. However, our experience shows otherwise. Over the past years, the Supreme Court has, in a large number of the cassation proceedings conducted by us, declared the cassation appeal founded. We’ve achieved this by handling cassation cases with a designated team, whose members are knowledgeable and experienced with proceedings before the Supreme Court. In addition, before initiating cassation proceedings, we assess the likelihood of a successful cassation appeal, for instance by conducting a quick scan or preparing an extensive cassation advice.
Cassation appeals challenging judgments rendered by a Court of Appeal on or after 15 April 2020 must be filed digitally. We explain how this works in our Dutch-language blog titled ‘Verplicht digitaal procederen in fiscale cassatie’.
Our approach and methods. Our approach and methods are set out below.
Conducting proceedings before the Tax Chamber of the Supreme Court is a discipline in its own right. The rules applying to proceedings before the Supreme Court differ from those applying to proceedings before Courts of Appeal and District Courts. Still, there are many options to win a case before the Supreme Court. A sharp analysis of the Court of Appeal's judgment and creative thinking are core to this. Addressing cassation cases with a designated team also contributes to our success. Our cassation team, which is led by Angelique Perdaems, has a great deal of knowledge and experience on how proceedings before the Supreme Court can best be handled. The legal knowledge and ample experience we’ve built up enable us to realistically appraise the likelihood of success in cassation beforehand.
Our approach and methods
It’s often not immediately clear whether a cassation appeal is likely to succeed. To arrive at a responsible opinion in the most efficient way, we’ve split up our methods into a number of phases. We can go through those phases independently from each other for you, although you can also choose the most extensive version right from the start. We’ll clearly state in advance what you can expect of us and what the costs are. Naturally, our services are based on a tailor-made approach. We distinguish the following phases.
1) A quick scan
When conducting a quick scan, we read the judgment rendered by the Court of Appeal (disregarding the underlying file of the proceedings) and assess its legal structure. On that basis, we’ll provide you with written advice as to we believe whether there are, at first glance, any options of conducting cassation proceedings.
2) Cassation advice
A sound advice with respect to the likelihood of success in cassation requires more than just studying the Court of Appeal's judgment. It requires a study of the complete file of the proceedings. The Court of Appeal may have made errors in its judgment, for instance by insufficiently having considered the assertions made in the case papers. The judgment could also be faultily justified – something that will not be noticed unless the complete file of the proceedings is studied in full. We’ll prepare a written cassation advice on the basis of a complete study of the file plus an analysis of the applicable rules and regulations and case law. In our advice, we clearly state whether, in our view, there are serious options for a cassation appeal. Subsequently, a positive advice will constitute the basis for filing the cassation appeal.
3) Cassation proceedings
In some cases, the issue is of such a legal and principal nature that the advisory phase can be skipped and we can start preparing the grounds for cassation without further ado. Those grounds will subsequently result in the ‘proposed grounds for cassation’, which precisely challenge the incorrect or incomprehensible parts of the judgment rendered by the Court of Appeal. We’ll then thoroughly substantiate those proposed grounds.
After the cassation appeal has been filed, the State Secretary for Finance will respond in a statement of defence. Subsequently, we’ll assess whether that defence gives rise to any further response on our part. We can respond by means of oral pleadings, written explanatory notes (in fact written pleadings) or a reply. The form chosen depends on the nature of the case and the contents of the statement of defence. Only attorneys are allowed to set forth the case orally or in writing before the Supreme Court, meaning we most certainly offer added value in tax-related cassation proceedings.
Once this preparatory phase has been completed, the Advocate General (an independent adviser of the Supreme Court) can submit an opinion, in which they issue their advice with respect to the cassation appeal. Such an opinion usually contains a lot of case law and legal comments in substantiation of the advice issued. We may subsequently respond to the Advocate General's opinion – be it within a brief, 14-day time span – by submitting ‘Borgers comments’ borgersbrief.
What if the State Secretary files a cassation appeal?
If the State Secretary files a cassation appeal, we can of course also assist you with conducting cassation proceedings. In that case, we’ll put up a defence against the proposed grounds filed, while assessing whether a cross-appeal should be filed.
The ideal process
Obviously, it depends on the case whether the entire process or part thereof will be carried out, as cassation proceedings may also be conducted without further ado if, in our view, there’s a likelihood of success. What the most ideal process is, will depend on the case.
For those who would like to know more about cassation proceedings or about reading judgments, a Dutch online training is available. Angelique Perdaems has developed two digital cassation sessions for PE-Academy. Please find them among her publications: cassation training 1 and cassation training 2.
Contact our specialists
Mr. A.J.C. (Angelique) Perdaems
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