Published on 3 May 2021

FOURTH SECTION

Application no. 64772/19 Z. against the Netherlands lodged on 9 December 2019 communicated on 13 April 2021

SUBJECT MATTER OF THE CASE

The application concerns tax proceedings.

The applicant contested the tax assessment in respect of the year 2015 to the extent that the income tax on the returns of his savings and investments – on the basis of the applicable law – was determined at € 1,112, arguing that he had not realised any gains but had in fact incurred losses that year. Employing a method of tax collection that uses a system of assumed rate of returns of 4% constituted, in the applicant ’ s view, a violation of Article 1 of Protocol No. 1 in abstracto because for several years it had no longer been reasonable to expect taxpayers to realise 4% gains a year. The applicant also claimed that, in the light of the actual lack of gains, his tax assessment for 2015 had been disproportionate and thus amounted to a violation of Article 1 of Protocol No. 1 in concreto .

The applicant ’ s claims were dismissed in the tax proceedings. In addressing the applicant ’ s grounds of appeal the Arnhem-Leeuwarden Court of Appeal, in its judgment of 16 July 2019, firstly made reference to – and followed – the Supreme Court judgments of 14 June 2019 (see, inter alia , ECLI:NL:HR:2019:816). In those judgments the Supreme Court held – summarised – that the system of assumed rate of returns of 4% should be considered to constitute a violation of Article 1 Protocol No. 1 in abstracto if the nominal average achievable return in the relevant year had been below 1.2%, that if that situation occurs, it is primarily for the legislator to repair and redress it, and that the judge will in principle only intervene when the individual taxpayer is confronted with an excessive individual burden. Secondly, the Court of Appeal concluded that it could not be said that the tax assessment for 2015 imposed such an excessive individual burden on the applicant, taking into account his income from work and home in that year. The Supreme Court rejected his appeal in cassation.

The applicant complains under Article 1 of Protocol No. 1 about insufficient procedural guarantees and a violation of his substantive right to the peaceful enjoyment of possessions.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s peaceful enjoyment of possessions within the meaning of the first sentence of Article 1 of Protocol No. 1?

If so, was that interference necessary to control the use of property in accordance with the general interest or to secure the payment of taxes? In particular, did that interference impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy , [GC], no. 22774/93, § 59, ECHR 1999-V)? To what extent is the method of tax collection employed by the Dutch tax authorities in the instant case relevant for establishing the proportionality of the interference (see R.Sz . v. Hungary , no. 41838/11, § 52, 2 July 2013) ?

2. Have the judicial proceedings at issue afforded the applicant a reasonable opportunity of putting his case to the competent authorities for the purpose of effectively challenging the measures allegedly interfering with the rights guaranteed by Article 1 of Protocol No. 1 (see G.I.E.M. S.R.L. and Others v. Italy [GC], nos. 1828/06 and 2 others, § 302, 28 June 2018 with further references)?