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)