Camera footage in corroboration of private use

Those who have a company car at their disposal have the option of applying for a “certificate of no private use” in which it is stated that the Inspector of Taxes has received confirmation from the employee in question to the effect that the latter’s private use of the company car does not exceed 500 kilometres annually, so that the employee does not have to factor the relevant addition for private use of the company car into his or her income tax return. It is essential, however, that the employee should be able to present evidence bearing out that his or her actual use for private purposes during the calendar year in question has not exceeded 500 kilometres. The Bois-le-Duc Court of Appeal recently ruled that it was permissible for the Tax and Customs Administration in checking the evidence submitted to make use of police camera footage.

The proceedings in question revolved around an additional withholding taxes assessment for private use of a company car. A comparison between the employee’s kilometre log and police camera footage prompted the Tax and Customs Administration to establish that the car in question had been spotted on the A2 motorway on 13 occasions whereas the kilometre log suggested that the car had either been on the road elsewhere or had been sitting idle. Having dismissed the kilometre log as unreliable, to make matters worse the Tax and Customs established that the opening odometer reading for a particular day had been 50 kilometres lower than the previous day’s closing reading. 

The employee argued that the use of police camera footage had invaded his privacy. The Court of Appeal countered by stating that potential infringement of privacy was inherent to the employee having submitted his certificate of no private use, as this rendered it obligatory for him to keep a record of private kilometres travelled using the company car, and any sort of proof presented by the Tax and Customs Administration’s of the kilometre log the employee had presented in corroboration having been inaccurate by definition touched upon the employee’s privacy. There was enough of a statutory foundation, so the Court of Appeal went on, for the use of camera footage when checking the private use of a company car. There was obviously a need for the most efficient monitoring method possible given the large numbers of certificates of no private use in circulation in conjunction with the limited options for the authorities to perform the relevant checks and the huge budgetary importance for the State. According to the Bois-le-Duc Court of Appeal, as the use of police camera footage was not disproportionate, it could only be regarded as permissible.