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IJZERGIETERIJ - EN MACHINEFAVRIEK ; J. ZIMMER EN ZONEN B.V. v. THE NETHERLANDS

Doc ref: 12347/86 • ECHR ID: 001-1014

Document date: April 13, 1989

Inbound citations: 0
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Cited paragraphs: 0
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Outbound citations: 2

IJZERGIETERIJ - EN MACHINEFAVRIEK ; J. ZIMMER EN ZONEN B.V. v. THE NETHERLANDS

Doc ref: 12347/86 • ECHR ID: 001-1014

Document date: April 13, 1989

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 12347/86

by Ijzergieterij - en Machinefabriek

J. Zimmer en Zonen B.V.

against the Netherlands

The European Commission of Human Rights sitting in private

on 13 April 1989, the following members being present:

MM. S. TRECHSEL, Acting President

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 May 1986

by Ijzergieterij - en Machinefabriek J. Zimmer en Zonen B.V. against

the Netherlands and registered on 22 August 1986 under file No.

12347/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a company, having its seat at Leusden, the

Netherlands. It is represented in the proceedings before the

Commission by Mr. M. L. B. van der Lande, a tax consultant practising

in Amsterdam.

The facts of the case, as they have been submitted by the

applicant company, may be summarised as follows:

By letter of 10 March 1982 the Inspector of Turnover Taxes

(Inspecteur der Omzetbelasting) imposed upon the applicant company an

additional tax assessment (naheffingsaanslag) to the amount of 512,255

DFL. In addition the company had to pay an increase imposed by way of

a "fine" of 51,225 DFL.

On 4 May 1982 the tax consultant of the applicant company sent

an unregistered letter to the Inspector of Turnover Taxes in which he

objected to the tax assessment and the increase without presenting

grounds. By letter of 28 May 1982 the tax consultant explained the

objection.

By letter of 23 March 1983 the Inspector of Turnover Taxes

informed the applicant company of his decision to declare the

objection inadmissible because it had not been received within two

months after the date of the notification of the assessment as

required under the General State Taxation Act (Algemene wet inzake

rijksbelastingen). It appeared that the letter of 4 May 1982 had not

been received by the Inspector.

By letter of 27 April 1983 the applicant company requested the

President of the Court of Appeal (Gerechtshof) of Amsterdam to grant

an extension of the term within which the applicant company had to

object to the tax assessment. In his decision of 27 May 1983 the

President rejected the request, considering, inter alia, that the

fact that the objection had not been delivered, was the responsibility

of the applicant company.

By letter of 13 May 1983, the applicant company appealed

against the decision of the Inspector, to declare its objection

inadmissible, to the Court of Appeal of Amsterdam. It submitted that

its objection had been sent in time, for which it adduced certain

pieces of evidence.

In its decision of 7 December 1984 the Court of Appeal

rejected the applicant's appeal. It considered, inter alia, that the

burden of proof that the objection had been lodged in time lay on the

applicant company and that the adduced pieces of evidence were not

sufficiently convincing that it had lodged the objection in time.

On 22 March 1985 the applicant company appealed against the

decision of the Court of 7 December 1984 to the Supreme Court (Hoge

Raad). It submitted that the Court of Appeal had wrongly held that

the applicant company had to prove that the Inspector of Turnover

Taxes had received the objection. In its decision of 6 November 1985

the Supreme Court rejected the appeal.

COMPLAINTS

1. The applicant company complains that it had no access to a

court in relation to the dispute concerning its additional tax

assessment because of having exceeded time limits. The question

whether the time limit had been exceeded was decided by the Inspector

of Turnover Taxes who is not an independent and impartial tribunal,

being a representative of the State of the Netherlands that is one of

the parties in the dispute. The applicant submits that a tax

assessment has a proprietary character. It invokes Article 6 para. 1

of the Convention.

2. The applicant company furthermore complains that it had no

access to an independent court in the determination of a criminal

charge against it. It submits that the imposition of an increase,

i.e. 51.225 DFL, must be considered to be a criminal charge.

The applicant company complains that under the General

State Taxation Act it has to prove its innocence. Under this Act an

additional assessment may be increased by a maximum of 100%. If one

objects to the additional assessment and the increase one must

lodge an objection with the Inspector of Taxes. In the present

case no independent judge has decided on the guilt of the applicant

company, but it nevertheless had to pay the increase. That is

considered by the applicant company to be a fine.

The applicant company complains that in respect of the

increase in its tax assessment it did not enjoy sufficient legal

safeguards such as a judicial investigation and trial.

The applicant company invokes Article 6 paras. 1, 2 and 3 of the

Convention.

THE LAW

1. The applicant company complains that it has no access to a

court in relation to its additional tax assessment. It has invoked

Article 6 para. 1 (Art. 6-1) of the Convention.

The Commission recalls that it has consistently held that

Article 6 para. 1 (Art. 6-1) of the Convention does not apply to proceedings

relating to tax assessments (No. 8903/80, Dec. 8.7.80, D.R. 21 p. 246;

No. 9908/82, Dec. 4.5.83, D.R. 32 p. 266).

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant company complains that it had no access to a

court concerning the imposition of the increase in its tax assessment,

which amounts to a criminal charge. It furthermore complains that, in

regard to this criminal charge, it had to prove its innocence and did

not enjoy sufficient legal safeguards. It has invoked Article 6

paras. 1, 2 and 3 (Art. 6-1, 6-2, 6-3) of the Convention.

However, the Commission notes that, under Dutch law, a system

for objecting to an additional tax assessment exists, which would have

allowed the applicant company a hearing in court, if it had brought

its objections in time.

In these circumstances, the Commission finds that this

complaint does not reveal the appearance of a violation of Article 6

(Art. 6) of the Convention.

It follows that this complaint is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commision

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

LEXI

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