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Expertises

Preliminary proceedings before the Dutch 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 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. The first requests have already been submitted to the Supreme Court.

Conditions

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. It’s important to know that you, the taxpayer, can file a request to be allowed to submit such questions.

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. 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 may 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.

Finally, the Supreme Court can – either of its own motion or at the request of the parties – allow the parties to provide a written or oral explanation.Third parties that have provided input are not given this opportunity. The Supreme Court could, however, decide to invite such third parties to be heard during a separate session. The parties can attend such a session and respond to the positions set out.

It’ll then be up to the Supreme Court to issue the preliminary ruling. The 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.

In een notendop

Discipline in its own right

Conditions

Proceedings before the court deciding questions of fact

Proceedings before the Supreme Court

 

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