Cassation

The Supreme Court has the final word. It is often thought that proceedings before the Dutch Supreme Court are highly complex and that a cassation appeal has little chance of success.

Our cassation team’s experience is different. In recent years, in a large number of cassation proceedings conducted by us, the Supreme Court has allowed the cassation appeal. We have also been at the forefront of groundbreaking tax judgments that have proved to be of great importance for legal unity and the development of the law. We achieve these results because cassation cases are handled by a dedicated team of attorneys with extensive knowledge and experience in proceedings before the Supreme Court and who enjoy tackling legal challenges.

Of course, cassation should not be pursued lightly. Before commencing a cassation proceeding, our cassation team therefore assesses whether there are prospects in cassation. This can be done by means of a Quick Scan or a comprehensive cassation opinion. Below we explain how we work. Quick Scan of een uitgebreid cassatieadvies. Hierna leggen wij uit hoe wij te werk gaan.

Our cassation team

Conducting proceedings before the Tax Chamber of the Supreme Court is complex and a discipline in its own right. The rules before the Supreme Court differ from those in the court of appeal and the district court. Yet there are many opportunities to win a case before the Supreme Court. A sharp analysis of the appellate judgment and creative thinking are central to this.

Dit realiseren wij doordat cassatiezaken door een vast team worden aangepakt. Ons cassatieteam bestaat uit Diede Molenaars, Antoine Blomen, Sara van Hemert and Josephine Hermes en wordt aangestuurd door Angelique Perdaems. Angelique zet de kennis en ervaring die zij heeft opgedaan als medewerker van het wetenschappelijk bureau van de Belastingkamer van de Hoge Raad graag voor u in. Ook heeft zij als advocaat ruime ervaring in het voeren van cassatieprocedures en de afwegingen die daarbij moeten worden gemaakt. De opgebouwde juridische kennis en ruime ervaring stellen ons cassatieteam in staat vooraf een realistische inschatting van de kansen in cassatie te maken.

Assessment of the appellate judgment

It is often not immediately clear whether a cassation appeal is promising. To arrive efficiently at a responsible judgment, we have divided our working method into several phases. We can carry out these phases independently of each other. You can, of course, also opt straight away for the most comprehensive variant. In advance, we make clear arrangements about what you can expect from us and what the costs will be. The basic principle is customization. We distinguish the following phases:

1) Quick Scan

When conducting a Quick Scan, we read the appellate judgment (without the underlying case file) and assess the legal construction. On that basis, we provide you with written advice on whether, at first glance, we see possibilities for pursuing a cassation proceeding. In this way, an initial assessment can quickly be made as to whether a cassation proceeding is worthwhile.

2) Cassation opinion

An extensive and thorough opinion on the prospects in cassation often requires more than just a study of the appellate judgment. The complete case file must be examined. The court of appeal may have erred by paying insufficient attention to what is stated in the procedural documents. For example, there may be a deficiency in reasoning, which cannot be identified without studying the complete case file.

Based on a comprehensive review of the file combined with an analysis of the regulations and case law, we prepare a written cassation opinion. In it, we explain whether we see serious possibilities for cassation. A positive opinion then forms the basis for lodging the cassation appeal. With the cassation opinion, an important part of the preparatory work for a cassation proceeding has been completed.

3) The cassation procedure

Sometimes appellate judgments are so legal and principled in nature that the advisory phase can be skipped and we can immediately begin preparing the grounds for cassation. This results in so called “grounds of cassation” (cassatiemiddelen), in which the precise incorrect or incomprehensible parts of the appellate judgment are challenged. We provide those grounds with a well substantiated explanation.

After the cassation appeal has been lodged, the State Secretary for Finance will respond by means of a statement of defense. We will then assess whether that defense gives cause to respond further. This can be done by means of an oral pleading, a written submission (in effect a written pleading), or a reply brief. The choice of form depends on the nature of the case and the content of the statement of defense. Here, too, we offer significant added value in tax cassation proceedings: the law provides that only an attorney may present oral or written argument before the Supreme Court.

After completion of this preparatory phase, the Advocate General (independent adviser to the Supreme Court) may issue an opinion, in which he advises on the cassation appeal. Such an opinion is generally a document supported by extensive case law and literature. We then still have the opportunity to respond to it in a so called “Borgers letter.”

What if the State Secretary lodges an appeal in cassation?

If the State Secretary also lodges an appeal in cassation, we can of course assist you in conducting a cassation proceeding. We then contest the grounds advanced and assess whether an incidental appeal in cassation (our own cassation) should be lodged.

The ideal path for an appeal in cassation

Whether the entire trajectory or only part of it is followed depends on the case. If we see prospects in cassation, the cassation procedure can also be commenced directly. The most suitable trajectory depends on the case. Thanks to our many years of experience, our cassation team is uniquely positioned to guide you.

Preparation in the proceedings before the Court of Appeal

No new facts can be introduced in cassation. The Supreme Court reviews the appellate judgment and tests whether it is legally correct, not incomprehensible, and sufficiently reasoned. It is therefore important that in the proceedings before the Court of Appeal the facts are properly presented and evidence is provided where possible. Positions must also be substantiated. The Court of Appeal must respond to an essential submission. Moreover, most legal positions also require factual support, which means those positions must be taken and substantiated before the Court of Appeal as well. It is therefore important during the proceedings before the Court of Appeal already to think ahead to the cassation proceeding. Our cassation team will of course be happy to think along with you.

Cassation news

Our cassation team closely follows developments at the Supreme Court. Judgments and Advocate General’s opinions are extensively analyzed. We also follow the case law in adjacent procedures, such as from the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU). Preliminary questions referred by courts to the Supreme Court are also relevant to our cassation practice. We are happy to share our knowledge and experience monthly through our cassation newsletter. On the first Friday of each month, we look back at the developments in the previous month.

Wilt u ons cassatienieuws ontvangen, meldt u dan here aan.

If you have questions about the possibilities for pursuing a tax cassation proceeding, please contact Angelique Perdaems.