No Box 3 compensation aimed at restoring taxpayers’ rights outside the massive objection procedure that made the objection late

Box 3 judgment of 24. December 2021

In its judgment of 24 December 2021 on the massive objection issue in Box 3, the Supreme Court has ruled that the flat rate scheme that has been in place at system level since 2017 is in breach of property rights and the principle of equality from the European Convention on Human Rights. and the fundamental freedoms (ECHR). In the Supreme Court’s view, there is no reasonable relationship between the interests that the legislature has wished to pursue with the standard rate system (feasibility, reality and dividends) and the inequality that the system entails. In that case, the Supreme Court was obliged to offer the taxpayer adequate legal protection against the established violation of his fundamental rights. This legal protection requires compensation aimed at restoring rights, the extent of which can generally only be reasonably determined.

This case

The case, which is now before the Supreme Court, concerns a taxpayer who did not have a case that fell under the massive objection. In this case, the taxpayer has too late objected to the income tax assessments of which box 3 formed part for the years 2015 to 2018, which is why these assessments are irrevocable. The Inspector declared these delayed objections inadmissible and did not take them into account, but considered the objections as requests for official reduction.

Regulation on official reduction

If there is (no longer) an opportunity for objection or appeal – the employment is then irrevocably determined – the taxpayer can still request the supervision to reduce the employment ex officio. An assessment set at an excessive amount can then be ex officio reduced by the inspector if certain conditions laid down in the law are met. One of the conditions is that the inaccuracy of the assessment does not stem from case law that has only been issued after the assessment has been irrevocably established and the Minister of Finance has not decided otherwise. If the Inspector rejects a request for ex officio reduction, the taxpayer may object and then appeal to the tax court.

Procedure before the Supreme Court

In this case, the inspector rejected the taxpayer’s requests for official reduction. The taxpayer subsequently raised an objection, complaint or cassation appeal. The question in this case of cassation is whether the compensation for the purpose of restoring rights as mentioned in the judgment of 24. December 2021 must also be offered to a person who has not objected in time, but whose objection has been considered a request. for ex officio reduction.

Supreme Court judgment for the years 2015 and 2016

The Supreme Court maintains its previous case law on Box 3 for the years 2015 and 2016. The judgment of 24. December 2021 does not change this, because that judgment only relates to the years from 2017. The court can therefore only decide for the years 2015 or. 2016. offer redress to the extent that it is likely that the Box 3 tax will impose an individual and excessive burden. That is not the case here.

Supreme Court judgment for the years 2017 and 2018

The Supreme Court is of the opinion that the taxpayer’s request for official reduction of the assessments does not meet the conditions set. The inaccuracy of the assessments imposed on the taxpayer for the years 2017 and 2018 is apparent from the Box 3 judgment of 24. December 2021. By this date, these assessments were already irrevocable. As the Minister of Finance has not announced that it is possible to deviate from this condition, which has been set for an official reduction, there is no right to reduce the assessments for the years 2017 and 2018.

Publication on

ECLI: NL: HR: 2022: 720

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