Tax Litigation - Fiscal Proceedings

Tax litigation and subsequent fiscal proceedings are focused on regulating the judges’ ruling concerning a fiscal conflict between a taxpayer (an individual, corporation or multinational) and the presiding tax authorities. Primarily, these conflicts arise out of disagreements between taxpayers and tax authorities, which refer to their legal positions on either an additional or a revised tax assessment notice. In some cases, the alleged fiscal irregularities coincide with a criminal investigation, which is usually initiated after a procedure known as the tripartite consultation between the Public prosecutor’s office, the fiscal intelligence and investigation service (FIOD) and the presiding tax authorities. The critical limitation of the IRS, is that by law the government has to choose between administrative punishment or criminal prosecution. The principles of ‘ne bis in idem’ and ‘una via’ are complementary in this regard, since ‘ne bis in idem’ prohibits the government to subject someone to criminal punishment more than once for the same judicial fact and the ‘una via’ principle commands that the government sticks to one penalty regiment.

In situations where the presiding tax authorities do not engage in an investigation – meaning one that is noticeable and transparent to the taxpayer - prior to the issuance of an additional or revised tax assessment notice, the tax authorities might be attempting to elicit a response from the taxpayer, either to accomplish a more whole and detailed view of the specific subject matter in the present case and/or to assess the taxpayer’s willingness to litigate and therefore the tax authorities’ range of jurisdiction authority to levy taxes. Consequently, a litigious procedure elicited by the presiding tax authorities, does not necessarily entail that the legal position and subsequent argumentations of the governing tax authorities are valid by law. As a result, it is advisable to seek legal representation when one is faced with the indispensable scrutiny of the fiscal-judicial process.

“I busted a mirror and got seven years bad luck, but my lawyer thinks he can get me five.”

Steven Wright, American Comedian

Van Clamsfield International Ltd. provides legal representation, elaborate advice, experience and knowledge to the following fiscal proceedings:

1. Preparation of the initial notice of objection procedure against tax assessments, under the auspices of the administrative authorities;
2. Preparation of the notice of appeal against tax assessments, that are heard under the district court, in specific the administrative law sector;
3. Lodging an appeal at the Court of Appeal against the judgment (concerning a tax assessment) passed by the district court;
4. Contesting the Court of Appeal’s decision by appealing in cassation to the Supreme Court of the Netherlands.

In tax litigation, it is essential to take into account that the initial objection and subsequent appeal procedures are the most defining stages of the entire litigious process, as the Supreme Court exclusively re-examines if the rule of law and legal form were appropriately applied by the lower court; the Supreme Court is thus not entitled to make a decision based on the facts of the case as these facts are no longer subject to discussion.

Van Clamsfield International Ltd. offers legal representation in fiscal matters and monitors the solidity of the fiscal proceedings by:

1. Informing and communicating with our clients the methods of action against the statement of opposition;
2. Safeguarding statutes of limitations on both parties’ sides, absolute and relative competence court of law, legal forms, and rules of law;
3. Requesting the court to exercise the applicable judicial rights on behalf of the client and to take affirmative measures in case of E.g. omissions or absenteeism on the side of the inspector of taxes.