A company director essentially has liability for the payroll taxes that are due and payable by his or her company. As soon as the company becomes aware of its inability to pay the outstanding taxes, it has to notify the Tax and Customs Administration accordingly in writing. The notice of inability to pay is required to be submitted within no more than two weeks of the date by which the tax payment in question should have been made, and if filed correctly will protect the company director from being held liable in a personal capacity unless the company’s inability to pay has been shown to have been caused by mismanagement at any time during the most recent three years (the burden of proof in respect of which rests with the Tax and Customs Administration). If the notice of inability to pay has not been filed in the appropriate manner, the legal presumption will be that it has been the company director him or herself to which the company’s inability to pay has been attributable. The admissibility of the company director’s refutation of this presumption will depend on his or her rendering it plausible that the incorrect submission of notice of inability to pay was nothing to do with him or her personally.
Two private limited-liability companies should have settled up their outstanding payroll taxes for the month of September 2013 by 31 October 2013 at the latest, but failed to do so. Although their notice(s) of inability to pay should have been filed no later than by 14 November 2013, the actual filing thereof was delayed until 26 November 2013. The tardy notification in question prompted the legal presumption that the companies’ failure to pay the additional tax assessments for September 2013 had been attributable to the director in charge of both companies. The District Court found that the director had rightly been held liable where this was concerned.
The companies’ notices of their inability to pay for the months of October and November 2013 should have been filed no later than by 14 December 2013 and 14 January 2014, respectively, but were in fact submitted early, on 26 November 2013 (together with the notification for the month of September 2013). It therefore fell to the Tax and Customs Administration to shore up its claim to the effect that the non-payment of the additional tax assessments for the months in question had been due to mismanagement on the part of the company director. The core business of the two companies consisted in the lending of staff to an affiliated company, for which no arm’s length fees were paid. The company director ought reasonably to have appreciated that his two companies would be unable to live up to the financial commitments they had to the Tax and Customs Administration. The District Court confirmed that the company director had been guilty of mismanagement where the two companies were concerned and that the Tax and Customs Administration had rightly held him liable as well for the additional payroll tax assessments for the months of October and November 2013.
Dutch version: Aansprakelijkheid bestuurder