Preliminary proceedings before the Supreme Court

Conducting proceedings before a tax court is a discipline in its own right. During the 30 years of our existence, we’ve gained a great deal of knowledge and experience relating to proceedings before District Courts, Courts of Appeal and the Supreme Court. Since 1 January 2016, the General State Taxes Act (AWR) has provided for the option for District Courts and Courts of Appeal to request a so-called preliminary ruling from the Tax Chamber of the Supreme Court. This option pertains to special proceedings that require the considerable knowledge of procedural law and tactics.

Obtaining a quicker ruling

It’s important to know that you, the taxpayer, can file a request to the court deciding on questions of fact (i.e. District Courts and Courts of Appeal) for a preliminary ruling from the Supreme Court. Thanks to these proceedings, you can obtain an immediate opinion on your legal question from the highest court of the Netherlands. This prevents you from having to continue litigating for years and years before actually reaching the Supreme Court for a final decision. This will save you time and money.

Conditions of a preliminary request

Requests for a preliminary ruling first of all require that a question of law is involved that must be answered before the dispute can be resolved. Moreover, such question of law must (potentially) play a part in a large number of comparable cases and have social relevance.

Proceedings before the court deciding on questions of fact

A court that considers requesting a preliminary ruling must allow the parties to the proceedings to express their views about this intention and to comment on the (draft) request. Subsequently, an interlocutory judgment (‘interim judgment’) will be issued, containing the request for a preliminary ruling. Apart from the question (or questions) proper, the interlocutory judgment will state the subject of the dispute, the facts established by the court and the parties' positions. In other words, it’s of great importance that you, the taxpayer, set out the positions in full, ensuring that the relevant facts are clear. Therefore, it is recommended to seek the assistance of a cassation specialist. Subsequently, the proceedings before the District Court (or Court of Appeal) will be suspended.

Proceedings before the Supreme Court

The Supreme Court will publish the interlocutory judgment on its internet site. If the Supreme Court decides to admit the request, it will request the case papers from the referring court. Subsequently, the parties will have six weeks to submit written comments. Just like in ordinary cassation proceedings, an Advocate General can prepare an opinion. We expect this to be almost always the case, because new questions of law are presented that, moreover, touch upon a large number of cases.

What’s new is that the Supreme Court can invite specific individuals or organisations to provide input. It may also post a general invitation to that end on its internet site. Subsequently, you, the taxpayer, will be allowed to respond to the written comments submitted by the other party (the State Secretary) and any comments submitted by third parties. It’ll then be up to the Supreme Court to issue the preliminary ruling.

Back to the court deciding on questions of fact

After the Supreme Court has issued a ruling, the case goes back to the court deciding on questions of fact. This referring court (the District Court or the Court of Appeal) will subsequently allow the parties to respond to the Supreme Court's ruling, as well as ultimately having to reach a decision in accordance with the Supreme Court's answers.

Proceedings for a preliminary ruling are many-faceted, requiring in-depth knowledge of and experience with procedural law. Hertoghs advocaten has ample experience conducting tax proceedings. If you have any questions about these proceedings or wish to discuss the options of these proceedings in your case, then please feel free to contact Angelique Perdaems.   .