Having constituted a tax group with another entity until 2009, that year the litigant for reason of discontinuation of operations terminated said tax entity. Unfortunately an oversight on the part of the Tax and Customs Administration resulted in the litigant – which had not filed any further tax returns once it had ceased trading – continuing to be invited, then reminded, then dunned to file its tax returns, with the tax authorities eventually imposing ex officio tax assessments augmented by penalties for the failed filing of tax returns and the tardy payment of turnover tax. The litigant was declared bankrupt on 11 June 2010. The trustee in bankruptcy in a notice of objection to the additional tax assessments and penalties argued that the Tax and Customs Administration had had no reason to demand that turnover tax should be paid, and the tax assessments and penalties were duly quashed. The trustee in bankruptcy went on to file a petition for turnover tax relief in respect of the costs associated with bailiffs, et cetera and his own fees and charges. As the litigant at the time of its bankruptcy had ceased qualifying as an entrepreneur for turnover tax purposes, the trustee’s petition ended up being denied. The litigant countered that entrepreneurial status had continued to accrue to it owing to particular project development and sales promotion activities taking place in Germany at the time.
Judgment
The District Court maintained that the petition for tax relief should have been filed as part of the tax return for the period in which the relevant invoice had been raised, and that the Tax and Customs Administration should have set aside the objection for reason of inadmissibility in so far as it concerned the invoices for which no such petition for tax relief had been submitted.
The District Court accepted that a petition for tax relief in connection with one of the invoices had been filed in good time, so that it would be able to come to a substantive decision where this element was concerned.
The District Court referred to the Dutch Court of Appeal’s Rompelman ruling and INZO ruling: the burden of proof for complying with the conditions governing tax relief and entertaining tax payer status rests with the tax relief petitioner.
Decision
The Guelderland District Court on 25 September 2017 concluded that a tax payer’s failure to render it plausible using objective data that turnover tax relief entitlement existed was to result in said tax payer being regarded as lacking such entitlement.
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Dutch version: Belastingplichtige verantwoordelijk voor bewijslast btw aftrek