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Preliminary rulings at the Supreme Court

Conducting tax court procedures is a specialised field. In the 26 years of our firm’s existence we have built up substantial knowledge and experience of procedures at district courts, appeal courts and the Supreme Court.

Since 1 January 2016 the General State Taxes Act has allowed district and appeal courts to request preliminary rulings from the Supreme Court’s Tax Division. These procedures are highly specialised and demand in-depth knowledge of procedural law and tactics. The Supreme Court has by now received the first requests for preliminary rulings.

Conditions

The first requirement when requesting a preliminary ruling is a point of law that needs settling in order to resolve a dispute. This point of law also needs to be an actual or potential issue in many comparable cases and to be of relevance to society. As a taxpayer, it is important to know that you can request a ruling.

Procedure at court of fact

A court considering requesting a ruling first has to allow the parties to state their positions and to respond to the questions (or draft questions) raised.

The next step will be an interlocutory judgment setting out the request for a preliminary ruling. As well as the point(s) of law at stake, the interlocutory judgment will state the dispute, the facts established by the court and the parties’ positions. It is consequently very important for taxpayers to ensure their positions are presented in full and that the relevant facts are clearly established. The procedure at the district or appeal court will then be adjourned.

Procedure at the Supreme Court

The Supreme Court will then publish the interlocutory judgment on its website. If the Supreme Court decides to proceed, it may ask the court requesting the ruling to submit the procedural documents. Parties then have six weeks to submit any comments in writing. Just like in ordinary cassation procedures, an advocate general can issue an opinion. We expect the Supreme Court almost always to issue an opinion, given that these requests involve new points of law affecting many different cases.

A new development is that the Supreme Court can now ask specific people or organisations to contribute to the opinion. The Supreme Court may also publish a general invitation to contribute on its website. The taxpayer can then respond to the written comments of the counterparty (i.e. the State Secretary) and any comments submitted by third parties.

Lastly, the Supreme Court may allow the parties – either at its own initiative or at the parties’ request – to provide a written or oral explanation. This opportunity is not available to third-party contributors. The Supreme Court can decide, however, to ask for these third parties to be heard at a separate hearing. The parties can attend this hearing and respond to any statements made.

The Supreme Court’s next task is to formally respond to the request for a preliminary ruling. The district or appeal court requesting the preliminary ruling will in turn allow the parties to respond to the Supreme Court’s ruling and ultimately issue a judgment of its own that takes account of the Supreme Court’s findings.

Preliminary rulings procedures comprise many different facets and require in-depth knowledge and experience of procedural law. The attorneys at Hertoghs advocaten have wide-ranging experience of conducting tax procedures. Please contact Angelique Perdaems if you have any questions about a Supreme Court prejudicial procedure.