CLAUDIUS TOONTJE BUNCAMPER AND HIS WIFE MARIA MARIETJE BUNCAMPER CREATED A FAKE COMPANY TO DEFRAUD. THEY WERE BUSTED, BUT DID NOT SPEND A DAY IN JAIL INSTEAD THEY WERE ELECTED TO PARLIAMENT. DUTCH SINT MAARTEN GOVERNMENT CRIMINALS
born in ST MAARTEN on SEPTEMBER 17 1967,
hereafter: the suspect.
In a judgment of October 15, 2018 – partly in view of the related remedial decision of October 19, 2018 – the accused was passed by the Joint Court of Justice of Aruba, Curaçao, Sint Maarten and Bonaire, Sint Eustatius and Saba on the grounds of “actual management of acting in violation of Article 49 of the General National Ordinance, committed several times ”sentenced to a fine of NAf 25,000, in the absence of payment and recourse to be replaced by 120 days in custody, and a community service order, consisting of a community service order which entails that the suspect is 240 hours will provide services in the form of unpaid labor, minus pre-trial detention.
There is a connection with the case against the co-defendant [co-defendant], no. 19/05275, the suspect’s husband. In this case I will also conclude today.
On behalf of the suspect, Mr. C. Reijntjes-Wendenburg, attorney in Maastricht, has proposed one ground of appeal.
Before I discuss the plea, I will give the context of the fact that is in cassation.
Spread over two summonses, the accused had been charged with various offenses, all related to the letting of a piece of land in Sint Maarten by [A] NV to [B] NV (hereinafter: [B]) and the financial arrangement that the accused in consultation with a civil-law notary and together with her husband has set it up for this purpose. Part of the financial construction are the establishment of [A] NV, of which a front man proposed by the suspect and her co-suspect became the owner / director, a rental agreement (a “commercial lease agreement”), a mortgage deed and a deed of transfer of the economic owned by a right of leasehold. Under the conditions of the leasehold, the plot could not be (sub) let. The financial construction was set up through the legal entity [A] NV nevertheless to obtain income from the rental of the plot of which the suspect and her co-suspect had obtained the leasehold, and this without the rental income for the suspect and her husband – from a fiscal point of view – being regarded as income. I will come back to this construction in more detail when discussing the remedy
The charges related to various parts of the construction and their consequences. Partly in view of the deed of partial withdrawal of the cassation appeal, in cassation it only concerns what has been charged cumulatively / alternative in the summons with number 100.00447 / 14, under 1, namely the factual management of the incorrect and incomplete filing of profit tax returns for the years 2009, 2010 and 2011 by [A] NV, for which the suspect has been convicted by the Court. The Court acquitted her of the other charges against the accused, leaving it open as to whether there was an unauthorized arrangement.
The plea complains about the evidence and can be divided into two sub-complaints. First of all, it is complained that “it is not clear and understandable why the court of appeal considered that this proven statement would follow from the evidence, the content of which is set out in the judgment”. In addition, there are complaints about the use of a written document by the court to prove its own observation. It is argued that documents are independent means of evidence, which may only be used as such for evidence.
The Court has declared proven against the accused:
“That [A] NV on or about October 7, 2011 and November 30, 2012 in Sint Maarten, while [A] NV is / was obliged under the General National Ordinance Land Taxes to make profit tax returns within the set period, deliberately the filed incorrect and incomplete profit tax returns in the name of [A] NV for the years 2009 and 2010 and 2011, after all, [A] NV has always intentionally declared an incorrect and too low amount of taxable profit, while the result could always be are that disadvantage could arise for the country of Sint Maarten, to the commission of which acts she, the accused, actually directed. ”
- In the contested judgment, the Court included the following under the heading “Evidence”:
“The decision that what has been declared proven was committed by the suspect is based on the facts and circumstances as contained in the evidence referred to above [read: below, AG], considered together.
Insofar as the means of evidence included below are referred to as ‘appendices’, they are appendices to the official report of the Sint Maarten Tax Authorities, Intelligence & Investigation Section, file number 1403, drawn up in the legal form and closed on 21 November 2014 and signed by [ reporting officer 1], employee of the Sint Maarten tax authorities, Intelligence & Investigation Section, also working as an extraordinary police officer.
To the extent that documents are used, they are only used in conjunction with the content of other evidence relating to the same fact or facts.
- Writings: the appendices D-009, D-010, D-011 being the profit tax returns for 2009, 2010 and 2011 respectively of [A] NV
- An official report of the interrogation, appendix G06-01, drawn up in the legal form and concluded on 8 July 2015 and signed by [reporter 1], employee of the Sint Maarten Tax Office / Intelligence & Investigation Section, also working as an extraordinary agent by the police and by [reporting officer 2], special agent of the police, as a financial investigator working for the Sint Maarten Cooperation Team Investigation Team, insofar as this includes, as a statement by [person concerned 1]:
The only person I dealt with regarding [A] was [suspect]. [A] had no business activities, only the rental of a piece of land. I have drawn up the annual figures on the basis of the accounts that [suspect] sent me. I have not checked the numbers. I printed out the 2009 and 2010 annual accounts in the name of [A] NV and sent them to [suspect]. I have not really discussed the financial statements with her. There have never been any discussions about it. I then completed the [profit tax] return in the name of [A] on the basis of the annual figures drawn up by me. I gave the report to [suspect] and she will have sent it to him.
I do not know the lease agreement you have shown between [A] NV and [B] NV (Court: [B]). I now see the name [B] as a tenant for the first time. I see that a monthly rental amount of USD 18,750 has been agreed. That is USD 225,000 on an annual basis. If I had seen this agreement, I would have recognized an amount of USD 225,000 as revenue.
- The statement of the suspect [suspect] as recorded in the official report of the interrogation dated 28 October 2014, page 9 to the question ‘Who took care of the administration for [A] NV?’:
‘I did that’.
- An official report, appendix V05-01, drawn up in legal form and concluded on 4 November 2014 and signed by the aforementioned [reporter 1], insofar as this includes, as a statement by [person concerned 2]:
Question: On April 1, 2008, the Island of Sint Maarten granted [suspect and co-suspect] the right of ground lease. Who was using the plot at that time?
Answer: The plot was at that time in use by the [B] NV I do not know the name of the company exactly. [involved person 3] was the director. He had been there for a few years. [suspect and co-suspect] had first rented the plot.
Question: What can you tell us about the intermediate NV?
Answer: In our jargon it is a kind of ‘straw construction’. You slide a dummy NV in between, as it were.
Question: Who took care of this as you call it dummie NV?
Answer: As a civil-law notary I establish this NV. The customer, in this case, [co-suspect], then comes with his front man. This was [person concerned 4].
Question: Who eventually became the owner of [A] NV?
Answer: It was the intention that [suspect and co-suspect] would remain the Beneficial Owner of the dummy NV and therefore of the beneficial ownership. It’s a straw construction.
Question: The bearer certificate, appendix 0-070, is shown. Who was this certificate issued to at the time?
Answer: Yes, so you are still the beneficiary owner of the entire situation. The person who owns the bearer share is the owner of the company. It was intended that [co-defendant] would have it. I provided it to [co-suspect].
- An official report, appendix G02-01, drawn up in legal form and concluded on September 25, 2014 and signed by the aforementioned [reporter 1] and by [reporter 2], special agent of the police, as a financial investigator working for the Criminal Investigation Cooperation Team Sint Maarten, insofar as containing, as a statement of the co-suspect [involved party 3]:
Question: Why did [B] not immediately buy the right of leasehold?
Answer: [suspect and co-suspect] did not want to sell it. They wanted to rent out but that was not allowed. They rented from the Island and were not allowed to sublet. It was intended that from the beginning in 2005 we would pay rent to [suspect and co-suspect], but that was not possible and for that reason a construction was devised. [suspect and co-suspect] then came with [A] NV.
- An official report of interrogation, dated 4 June 2015, drawn up by mr. MJ de Kort, examining magistrate charged with the handling of criminal cases in this court, insofar as this includes, as a statement by [involved person 2]:
[suspect and co-suspect] visited me because they had a number of problems with the right of long lease that was granted to them with regard to the plot at [a-straat 1]. During that conversation it turned out that the plot had already been let, even before the deed was executed. The plot was leased to [involved party 3] or his NV, of which he is director. According to the leasehold conditions, the plot may not be (sub) let.
During the aforementioned conversation, a second problem came up, namely that [suspect and co-suspect] had already been receiving rental income from [involved party 3] or his company for some time. This rental income fell into their income sphere. For this problem, [suspect and co-suspect] wanted a technical tax solution. I note that if the rental income falls within the income sphere of [suspect and co-suspect], it means that they owe tax on it. [suspect and co-suspect] could no longer receive rent and they had to get rid of the (whether or not verbal) lease with [involved person 3]. I then proposed to [suspect and co-suspect] to find a buyer. The legal entity did not have to have the money, but will buy. So the advice was to transfer the beneficial ownership to an intermediary. The intermediary is then authorized to lease to [involved party 3] or his company. [A] would buy the beneficial property. I asked my secretary to give the share to [co-defendant], from whom I received the payment that was used for the payment in full. ”
- The Court’s reasoning in evidence is as follows:
“[Suspect and co-defendant] [by which the Court of Appeal refers to the defendant and her co-defendant, AG] is accused of actually having given guidance to [A] deliberately incorrect and incomplete filing of the profit tax returns 2009, 2010 and 2011. The Public Prosecution Service has argued in this regard that from December 2008 [A] has the economic ownership of a right of long lease, that [A] annually pays a ground rent of NAf 18,492 to the land that [A] has with a leasehold the taxable land and receives monthly rental income in the amount of USD 18,750.00, that this rental income is not accounted for in the profit tax returns of [A] and that these returns have therefore been made incorrectly and / or incompletely.
[suspect and co-suspect] have argued that no activities took place in [A] other than the lease of the land subject to long lease to [B], and that the rental income received in this respect was taken into account in the profit tax returns. Upon request, [suspect and co-suspect] presented the profit tax return for the year 2009 to the Court. The Court has shown from this that a loss has been indicated. Now that only the rental activities to [B] take place in [A], the rental income from it amounts to USD 225,000 annually, and the costs for the ground rent and the salary of the sole employee Walter together would have amounted to at most USD 30,000, [A] would annually should have reported a significant profit. However, this has not happened, so that the Court considers it proven that the profit tax returns for 2009, 2010 and 2011 have been incorrect and incomplete. This judgment is confirmed in the statement of the tax advisor [involved person 1], who completed the profit tax returns on the basis of the information provided by the suspect. This is because [person concerned 1] stated that he was unaware of a lease and that the annual rental income of USD 225,000 was not included in the returns.
Since [A] did not declare the rental income or only for a small part, as a result of which the taxable profit was incomplete and incorrectly stated, Sint Maarten could therefore miss out on tax income.
The Court deduces the intent of [suspect and co-suspect] to incorrect and incomplete filing of profit tax returns from the circumstance that [suspect and co-suspect], in consultation with the civil-law notary [involved party 2], have knowingly set up a financial construction, whereby the rental income were no longer enjoyed in private by [suspect and co-suspect] but by the company controlled by her and her co-suspect [A]. However, by not passing on this rental income to the tax advisor [involved person 1] who completed the profit tax returns for [A], [suspect and co-suspect] had the intention of making these returns incorrect and incomplete.
Both suspects had extensive involvement in the course of events within [A]. For example, civil-law notary [involved party 2] stated that he had discussions with both suspects about the financial arrangement to be set up, whereby [A] was deliberately placed between them and [B], that it was intended that both suspects would be the beneficial owners of [A], that the co-defendant [co-defendant] came up with ‘straw man’ [involved person 4], and that the co-defendant [co-defendant] has obtained the bearer share in [A]. Furthermore, tax advisor [involved person 1] stated that the suspect was his only contact person with regard to the preparation of the annual accounts and the tax returns of [A], that the suspect took decisions regarding [A] and that she consulted with third parties.
- Art. 49 General Land Taxation Ordinance, which applies to proven facts, 1 read as follows at the time:
“1. With imprisonment not exceeding six months or a fine not exceeding NAF. 25,000, – or, if the under-levied tax is higher than this amount, at most once the amount of the under-levied tax, or with both penalties, if the act or omission could result in disadvantage for the Netherlands Antilles or for one of the island territories, the person who is obliged under this national ordinance to:
making a declaration within a set term, which is not made within the set term, is incorrect or incomplete
het verstrekken van inlichtingen, gegevens of aanwijzingen, en deze niet, onjuist of onvolledig verstrekt;
het ter inzage verstrekken van gegevensdragers of de inhoud daarvan, en deze in valse of vervalste vorm voor dit doel ter beschikking stelt;
het voeren van een administratie overeenkomstig de in de belastingverordening gestelde eisen, en een zodanige administratie niet voert;
het bewaren van gegevensdragers, en deze niet bewaart;
het verlenen van medewerking als bedoeld in artikel 43, vijfde lid, en deze niet verleent;
het verstrekken van de opgave, bedoeld in artikel 45, tweede en derde lid, en deze opgave niet verstrekt.
2.Degene die zich opzettelijk schuldig maakt aan een in het eerste lid omschreven strafbaar gesteld feit, wordt gestraft met gevangenisstraf van ten hoogste vier jaar of een geldboete van ten hoogste NAF. 100.000,– of, indien de te weinig geheven belasting hoger is dan dit bedrag, ten hoogste tweemaal het bedrag van de te weinig geheven belasting, dan wel met beide straffen.
3.Het eerste en tweede lid blijven buiten toepassing indien degene op wie de verplichting rust alsnog een juiste en volledige aangifte doet of juiste en volledige inlichtingen, gegevens of aanwijzingen verstrekt voordat hij weet of redelijkerwijs moet vermoeden dat de Inspecteur of een van de in artikel 48, tweede lid, bedoelde ambtenaren en personen de onjuistheid of onvolledigheid bekend is of bekend zal worden.”
De klacht tegen het gebruik voor het bewijs van de eigen waarneming
- Ik begin met de klacht die zich richt tegen het gebruik voor de bewijsvoering door het Hof van “de eigen waarneming van de inhoud van een ter terechtzitting getoond geschrift wat door artikel 383 van het Wetboek van Strafvordering van Curaçao [lees: de Nederlandse Antillen2 (hierna: SvNA), AG] niet wordt toegelaten”. Aangevoerd wordt dat “geschriften […] immers zelfstandige bewijsmiddelen” zijn die “alleen als zodanig voor het bewijs” gebruikt kunnen worden.
- The complaint is based on the assumption that the Court of Appeal used the content of the profit tax return exclusively through its own observation for evidence. The complaint ties in with a part of the complaint that is directed against the evidence as a whole, meaning that the reports themselves do not form part of the evidence. Nowhere from the evidence would it appear “what the court of appeal has established with regard to the returns for 2010 and 2011.” In particular, it is argued that about “the tax return for 2011 […] nothing at all can be found in the evidence”.
- It is noted in the scriptures that the returns themselves are not part of evidence and that only a “mysterious passage” is devoted to the returns which I will italicize below. The passage is part of the beginning of the rendering by the Court of the evidence that I have reproduced above at marginal 9:
“Insofar as the means of evidence included below are referred to as ‘appendix’, it concerns appendices to the official report of the Tax Authorities Sint Maarten, Section Intelligence & Investigation, file number 1403, drawn up in the legal form and closed on 21 November 2014 and signed by [Reporting officer 1], employee of the Sint Maarten tax authorities, Intelligence & Investigation Section, also working as an extraordinary police officer.
To the extent that documents are used, they are only used in conjunction with the content of other evidence relating to the same fact or facts.
- Writings: the appendices D-009, D-010, D-011 being the profit tax returns for 2009, 2010 and 2011 respectively of [A] NV ”
- With the “mysterious passage” the Court has indicated that it has used the profit tax returns for 2009, 2010 and 2011 of [A] NV as documentary evidence, such as those as annexes D-009, D-010 and D-011 are included in the official report of the Tax Authorities Sint Maarten, dated 21 November 2014. The consideration that the documents are only used “in conjunction with the content of other evidence” shows that the Court of Appeal used the profit tax returns as “other writings ”as referred to in art. 387, first paragraph under e, SvNA.
- In the light of the foregoing, the complaint that the Court used the content of documents for evidence solely through its own observation is based on a misreading of the judgment. Insofar as it is complained that the declarations themselves do not form part of the evidence, the plea has no factual basis.
- The complaint fails.
The complaints against the evidence as such
- The further complaints are directed against the evidence as such. The evidence is considered inadequate in several respects. The following questions are raised with regard to profit tax returns: Were they signed? Have they reached the tax authorities? It is further argued that it does not follow from the evidence used that the agreed rent was actually paid in 2011. It would therefore not be possible to deduce from the evidence used that [A] NV made false profit tax returns. Nor could it be deduced from the evidence that the suspect actually took charge of making false reports. The involvement of the suspect with [A] NV would be insufficient for this.
- For the purpose of the discussion of the complaint that is directed against the evidence as such, I outline the course of events as it appears from the evidence and considerations of evidence. I will start with the background of the rental, because the proven fact relates to the profit tax return related to the rental income of [A] NV, and then I will discuss the business operations of the legal entity [A] NV, whereby the suspect was involved together with her co-suspect.
- The suspect, together with her co-suspect, also spouse, acquired the right of long lease from the island of Sint Maarten in 2008 with regard to a plot on [a-straat 1] that they had rented from the island until that time. This plot was used by [B] since 2005 on the basis of agreements that the suspect and her co-suspect had made with [involved person 3], the owner of [B].
- Under the ground lease conditions, the plot could not be (sub) let. In order to continue letting the plot to [B] and to prevent the rental income from falling within the income sphere of the suspect and her husband, the suspect, together with her husband, set up a straw construction in consultation with a notary. The economic ownership of the right of leasehold has passed into the hands of a “dummy NV”, namely [A] NV, on the basis of which it – unlike the suspects – would be allowed to rent to [B]. A monthly payment of $ 18,750 has been agreed between [A] NV and the owner of [B], which amounts to $ 225,000 on an annual basis. The agreed monthly payments to [A] NV, related to the use of the plot by [B],
- On the basis of the evidence, the following can be noted about the business operations of the legal entity [A] NV. The suspect and her husband put forward [involved person 4] as a front man, who thus became the owner of [A] NV on paper. It was intended that the suspect and her husband Beneficial Ownerwould remain of the dummy NV The bearer share in [A] NV was placed in the hands of the suspect’s spouse because the notary had received from him the amount that had been used for the payment in full. Within the legal entity, only rental activities took place, namely the rental of the plot on [a-straat] to [B]. The suspect kept the records of [A] NV and provided the accounts of [A] NV to a tax adviser who prepared the 2009 and 2010 annual accounts on the basis of this and then completed the profit tax returns for those years. He then gave the relevant reports to the suspect. At the time, the tax advisor was not aware of the rental income on the basis of the agreement between [A] NV and [B] and therefore did not account for this as income.
- After this sketch, I will come to a substantive discussion of the objections on which the complaint against the evidence is substantiated.
- In cassation, the objections are first directed against the proven statement that the legal person [A] NV “has made profit tax returns for the years 2009, 2010 and 2011 incorrectly and incompletely, while the result could always be that the country of Sint Maarten could arise ”. An offense that is punishable in art. 49, first paragraph, opening words and under a, General Land Taxation Ordinance (old). Furthermore, the objections are directed against the conviction of the suspect for actually directing the criminal acts by [A] NV
- Before I start discussing the objections relating to the declaration of proven evidence of the incorrect and incomplete filing of profit tax returns for 2009, 2010 and 2011 by [A] NV, I will consider the considerations of the Court in this regard.
- The consideration of evidence shows that, according to the Court of Appeal, the “incorrect and incomplete” filing of the profit tax returns lies in the “non-declaration or only a small part” of the declaration of “the rental income”. The Court held that due to the incorrect and incomplete declaration of the rental income, the taxable profit was incomplete and incorrect, as a result of which Sint Maarten could miss out on tax income. More specifically, the Court of Appeal has established that a loss was declared on the profit tax return for 2009 and that [A] NV should have declared a “significant profit” annually because in [A] NV only the rental activities take place to [B] and the rental income from it amounts to $ 225,000 annually.3 In summary, it is argued in cassation against the evidence of incorrect and incomplete profit tax returns only that it cannot follow from this that the returns were made, nor that the rent for 2011 was actually paid to [A] NV.
The content of the declarations
- With regard to filing the profit tax returns for 2009, 2010 and 2011, it is argued that the Court of Appeal left open the question of who signed the returns, who took care of them and whether they were received by the tax authorities. I would point out that these questions require an examination of a factual nature, for which there is no room in cassation. Insofar as this may be apparent from the official report drawn up at the hearing of the Court of Justice, nothing was raised about the questions raised in cassation at the hearing. From the fact that the Court of Appeal made use as documents of the “profit tax returns for 2009, 2010 or 2011 of [A] NV respectively” in the file, it follows that the Court assumes that those profit tax returns by [A] NV made and received by the tax authorities. This conclusion is not incomprehensible. This part of the remedy therefore fails.
The payment of the rental income for 2011 to [A] NV
- Then I turn to the objections to the part of the evidence that relates more specifically to the rental income for the year 2011. It is argued that the evidence used does not indicate that the rent agreed for that year has actually been paid. In doing so, recourse is made to considerations of the Court in which it was established that for the whole of 2011 nothing was paid by [A] NV to the suspect and her co-suspect “since [B] also did not pay to [A] during that period.” From the statement of the tax advisor used by the Court for evidence, it can only be deduced that under the agreement $ 18,750 should have been paid monthly, it is argued. It is also argued in this regard that because the evidence does not show that the agreed rent was actually paid in 2011, “the possibility [is] that no rent was paid at all, or that the rent was not paid to [ A] NV, but to [suspect and co-suspect] personally (in which case she should not have been accounted for in the profit tax returns of [A] NV) or to still others. These possibilities are so real that they should have been ruled out. ”
- The consideration of the Court relating to the payment of the agreed rent, relied on in the pleadings, is one of the facts on which the Court relied in the acquittals which it subsequently further specified. motivated and focused more on the various facts of which the Court acquitted the suspect (and her co-suspect). I will give an integral part of the reasoning below because, in line with the sketch given above, it gives an even more detailed picture of the case as a whole and thus of the context of the fact that is at issue in cassation. I italicize the portion of considerations invoked in the scriptures.
In assessing the facts of which the acquittal, the Court assumes the following facts.
At the end of 2004, the beginning of 2005, the suspect [suspect] and her co-suspect and husband [co-suspect] (hereinafter: [suspect and co-suspect]) were interested in the plot of land on [a-straat] in Sint Maarten in order to develop that plot of land commercially . The plot of land could not immediately be leased out by the government. The Lieutenant Governor offered to [suspect and co-suspect] first rent the piece of land and later they would get it on a long lease. During that period, [person concerned 3] came to them to ask if he could use this piece of land for his business. His intention was to start a company and use the plot of land to store and sell building materials. [suspect and co-suspect] subsequently asked the Executive Council whether they could sublet the plot of land to a third party. They never got an answer to that.
Subsequently, [suspect and co-suspect] made the following arrangements with [person concerned 3]. [involved party 3] would pay the rent directly to the government until [suspect and co-suspect] would get the plot of land on a long lease. As soon as the latter were the case, they would draw up a lease in which the rent would be determined retroactively for the period from 2005 until the acquisition of the leasehold. The ground rent already paid to the government would be deducted from this. The leasehold started in April 2008, and the annual ground rent is set at NAf 18,492.
Prior to obtaining the leasehold, [suspect and co-suspect] approached notary [involved party 2] to draw up a formal lease agreement between [suspect and co-suspect] on the one hand and [B], the company of [involved party 3], on the other. [person concerned 3] had been asking for this for years. [involved party 2] has examined the leasehold and stated that letting was not possible without permission from the government. [person concerned 2] was asked whether there was another possibility, whereby no rent would be paid, so that they would not be taxed in the income sphere of [suspect and co-suspect].
[involved party 2] has proposed as a solution to transfer the beneficial ownership of the leasehold to a company to be set up especially for this purpose. This company would then be allowed to rent the piece of land to [B]. [involved party 2] also states that it was the intention that [suspect and co-suspect] would later sell the leasehold and then request permission from the government. The purchase price for the beneficial ownership of the leasehold is an amount of USD 3,000,000.
Subsequently, [suspect and co-suspect] asked a friend, [involved person 4], to become owner / director of the new company to be established. [involved person 2] arranged for the establishment of the company [A] NV [involved person 4] would receive a salary of USD 1,500 per month. It was also calculated that [A] should receive an amount of more than USD 18,500 per month from [B], to cover the repayment of the purchase price to [suspect and co-suspect] and the monthly costs to be incurred, including in particular a salary. for [person concerned 4].
[suspect and co-suspect] state the following about the construction. It was an advice from [person concerned 2]. He said that such a construction was prohibited in the Netherlands, but not in the Antilles. He said there were 1,500 such constructions in the Antilles. [involved party 2] had explained to [suspect and co-suspect] that in addition to an agreement for the transfer of the economic ownership of the leasehold to [A], a mortgage would also be established for the benefit of [A]. This was because [suspect and co-suspect] could not simply transfer the leasehold to a third party while [A] had the beneficial ownership thereof. A mortgage of USD 2,000,000 would be established on the plot of land. If [suspect and co-suspect] would then wish to transfer the leasehold, first the mortgage had to be paid to [A]. According to [person concerned 2], [suspect and co-suspect] did not have to pay tax if they transferred the economic ownership of the leasehold.
[involved person 2] arranged everything and only had to sign. He knew what [suspect and co-suspect] and [involved person 3] wanted.
[involved party 2] explains about the construction as follows. [suspect and co-suspect] came to him because they were advised by their accountant to convert the rent on the land into something else, because they would have to pay a lot of tax on these rent. They then sold the economic property in order to obtain a purchase price instead of rent. This solution was proposed by [person concerned 2] himself.
With regard to the construction, [involved party 3] states that he went to [involved party 2] to make sure that it was in order.
A deposit of USD 1,600,000 to be paid by [A] to [suspect and co-suspect] had been agreed. This has never been fulfilled. When signing the agreement, [party concerned 3] stipulated a key money of USD 750,000 to be paid to [A]. This has never been paid either.
For the whole of 2011, [A] did not pay anything to [suspect and co-suspect], since [B] did not pay [A] during that period either. [suspect and co-suspect] subsequently broke the agreement with [A] in writing due to non-payment. All outstanding payments would be collected at a later date. At some point the contracts were broken and [suspect and co-suspect] started negotiating with [involved person 3]. Ultimately, with the permission of the government, the leasehold was sold to [B] in 2013 for USD 345,000. ”
- For the assessment of the objections of the part of the evidence relating to the payment of the rental income by [B] in 2011, it is important what was raised about that rental income at the hearing. With regard specifically to the tax return for 2011, counsel pointed out at the hearing of the Court that [B] “regularly failed to meet the agreed payment obligations”. The defendant’s counsel has argued that the owner of [B] has “stopped paying” after the suspect and her co-defendant have “been charged”.
- This finding does not entail any consequences, in so far as this can at least appear from the official report drawn up of the hearing. In particular, the official report cannot show that not actually paying the rent that had been agreed for 2011 would mean that the profit tax return for 2011 was not “incorrect and incomplete” or that it “could not be the result that disadvantage could arise for the Netherlands Antilles and / or for one of the island territories and / or for the country of Sint Maarten, as was charged. This means that the complaint fails insofar as it implies that the evidence should have ruled out the possibility that no rent was paid at all for 2011, or that the rent was not paid to [A] NV, but to [suspect and co-suspect] personally or to still others.
- The statement of reasons relating to the evidence, which would not show that [B] actually paid rent for 2011 to [A] NV, is based on the legal view that the profit tax return for 2011 is only “incorrect or incomplete” – as has been charged cumulatively under 1 and has been declared proven – if the rent agreed for 2011 was actually paid in 2011. That legal view is incorrect. The rent agreed for 2011 that was not actually paid in 2011 but is due for 2011 must also be stated in the profit tax return. I will explain this.
- In Sint Maarten, the allocation of profits and losses to a particular year is determined by good business practice. 4 On the basis of good commercial practice, the lease installments are allocated to the year in which the performance is delivered. 5 It follows that rent due (but not paid) should also have been declared in the profit tax return for 2011.
- In its considerations relied on in the document, the Court has established that the suspect and her co-suspect have broken the agreement with [A] NV for non-payment after [B] failed to pay for the whole of 2011. It follows that [A] NV had a claim against [B] consisting of the agreed rent for 2011, as confirmed by the following consideration of the Court: “All outstanding payments would be collected at a later date.”
- On this basis, the Court was entitled to assume that the agreed rent but not paid in 2011 should have been declared on the profit tax return for 2011 and that this return was incorrect and incomplete because it did not state the rent due. I hereby take into account that it was not argued at the hearing that and why the rental income due for 2011 should not be allocated to 2011.
- This finally brings me to the complaint that it cannot follow from the evidence that the accused actually gave guidance in making false profit tax returns. In particular, it is argued that it cannot be deduced from the evidence that the accused “had any control over and / or in [A] NV”. control could not be inferred: the administration by the suspect, the statement by [party involved 1] that the suspect will have sent the profit tax returns that he has given bearer share of the company.
- In order to provide evidence of the proven factual leadership, it is not required that the suspect “had any control over and / or in [A] NV” In view of the proven statement, which is in line with the text of art. 53, second paragraph, opening lines and under b, Sr Netherlands Antilles (currently: art. 1: 127, second paragraph opening lines and under b, Sr Sint Maarten) must follow from the evidence that the suspect actually led the prohibited conduct. 6 That is why I will limit myself to the question whether it can be inferred from the evidence that the suspect actually led the prohibited conduct.
- In its summary judgment of 26 April 2016, the Supreme Court considered the following with regard to the assessment of the question whether someone as de facto manager is criminally liable:
In assessing this [whether someone is criminally liable as de facto manager, AG], it must be assumed that it follows from the linguistic meaning of the term de facto management on the one hand that the mere circumstance that the suspect is, for example, a director of a legal person, is not sufficient is to designate him as the de facto manager of a criminal offense committed by that legal person. But on the other hand, such a legal position is not a requirement, while someone who is not employed by the legal person can also be the actual supervisor of a criminal offense committed by the legal person.
The same criminal offense can be given factual direction – jointly or otherwise – by more than one person. A legal person can also be a de facto manager.
Actual leadership will often consist of active and effective behavior that is unmistakably within the ordinary meaning of the term. There may also be actual management if the prohibited behavior is the inevitable consequence of the general policy pursued by the suspect (for example as a driver). One could also think of making such a contribution to a complex of behaviors that led to the prohibited conduct and taking such an initiative in doing so that the suspect must be deemed to have actually given direction to that prohibited conduct. No other person is required to have performed the physical implementing acts.
Under certain circumstances, a more passive role may also lead to the judgment that a prohibited behavior has been promoted in such a way that it can be regarded as actual leadership. This may in particular be the case with the suspect who is authorized and reasonably obliged to take measures to prevent or terminate prohibited conduct and who refrains from taking such measures.
Actual management implies an independent design requirement for the prohibited conduct. The lower limit for this set-up of the manager is that he consciously accepts the considerable chance that the prohibited behavior will occur. Proof of such acceptance may also be the case – in particular in the case of more structurally committed offenses – if what the supervisor was aware of about the commission of criminal offenses by the legal person was directly related to the prohibited conduct described in the indictment.7
- The evidence shows that the suspect, together with the co-suspect and in consultation with a civil-law notary, set up a financial construction in which [A] NV was established. This financial arrangement was set up to allow payments by [B], which the defendant and her co-defendant knew would otherwise fall within their income sphere as rental income, to a legal entity of which the defendant and her spouse would be beneficial owners . The bearer share came into the hands of her husband and the suspect took care of the accounts of the NV
- In other words, the evidence provided by the Court shows that the accused and her co-accused operated as a unit when setting up the financial construction, that it was intended that they would also benefit from this construction together and that together they were in control of the NV.
- The court considers the fact that the rental income was received by the company [A] NV as part of the construction partly set up by the accused, but it is less clear whether the court also considers the circumstance that the rental income would not be declared at regards profit tax returns as part of this construction. This is not so important for the assessment of whether the accused has given actual direction to filing incorrect and incomplete profit tax returns.
- The suspect did the administration of the legal entity. It provided these accounts to the tax advisor, who prepared the 2009 and 2010 annual accounts on the basis thereof and completed the profit tax returns for 2009 and 2010 in the name of [A] NV, but it did not provide the tax advisor with any information about the lease agreement between [A] NV and [B], as a result of which the payments by [B] were incorrectly not recognized in these returns. The tax advisor then sent the relevant tax returns to the suspect.
- From the fact that the 2009, 2010 and 2011 returns were used as “documents” for evidence, it follows that, in the opinion of the Court, they were submitted. In view of the mutual division of roles within the structure set up, the Court of Appeal was able to deduce from the evidence that the accused not only gave actual direction to the prohibited conduct regarding the 2009 and 2010 profit tax returns, but also with regard to the 2011 profit tax return.
- The complaints fail.
- The remedy fails in all parts.
- I would point out of my own motion that the handling of the cassation case was not completed within two years after an appeal in cassation was lodged on 26 October 2018. This means that in cassation an infringement has been made of the provisions of art. 6, first paragraph, ECHR, right to be tried within a reasonable period of time. On the basis of settled case law of the Supreme Court, this should lead to a reduced sentence.
- I have not found any other ground which should lead to the annulment of the contested decision.
- This conclusion seeks to set aside the contested decision, but only with regard to the amount of the penalty imposed, to reduce the penalty for violation of the provisions of art. 6, paragraph 1, ECHR to be tried in cassation within a reasonable period of time, and to dismiss the appeal for the rest.
The Attorney General
at the Supreme Court of the Netherlands
1As of March 31, 2014, the General National Ordinance Land Taxes has been replaced by the General National Ordinance Land Taxes, which in the first paragraph “NAF. 250,000, – ”has been replaced by“ twenty-five thousand guilders ”and“ disadvantage for the Netherlands Antilles or for one of the island regions may arise ”through“ disadvantage for Sint Maarten ”, and whereby in the second paragraph“ NAF. 100,000, – ”has been replaced by“ one hundred thousand guilders ”.
2JM Reijntjes, ‘Legislation’, in: JM Reijntjes & AD Marchena-Slot (ed.), Antillean criminal justice: an introduction , The Hague: Boom juridisch 2016, p. 90 ff. https://sxmgovernment.com/2021/02/18/court-docs-claudius-toontje-buncamper-marietje-buncamper-created-a-fake-company-to-defraud-rather-than-a-prison-sentence-he-was-made-parliamentarian/