Chanel Brownbill

UPDATED: FORMER MP CHANEL BROWNBILL 18 MONTHS PRISON SENTENCE, PLUS COMMUNITY SERVICE. Full Court Transcripts In ENGLISH

FORMER MP CHANEL BROWNBILL 18 MONTHS PRISON SENTENCE, PLUS COMMUNITY SERVICE. Full Court Transcripts.
The Hague / Philipsburg The Supreme Court has rejected the appeal in cassation of the Sint Maarten politician Chanel Brownbill. This means that the sentence of the former Member of Parliament to a prison sentence of eighteen months, of which fifteen months with a probationary period of 3 years plus a community service of 240 hours is final.

Brownbill was found guilty of tax evasion by the Common Court in Willemstad last March. For seven years, he intentionally failed to file income tax and business turnover tax returns within the set time limit.

The Court heavily blamed Brownbill on the fact that as a representative of the people he received a substantial income from the community treasury and, on the other hand, did not care to seriously disadvantage society and that same community treasury for an estimated 890,000 guilders. In doing so, the suspect has put his own financial advantage above the public interest and thus the society of Sint Maarten.

The judges accused the politician of not providing any insight into his actions and not showing any regrets. With the judgment of the Supreme Court, Brownbill joins a long line of convicted or yet to be prosecuted politicians on Sint Maarten. In January, the Supreme Court confirmed the conviction of former minister Maria Buncamper. In February, the Court of Appeal gave the Public Prosecution Service the green light to prosecute her husband and current Member of Parliament Claudius Buncamper for accepting bribes as an official.

Conclusion AG. Deliberately failing to file income tax and business turnover tax returns by a politician in Sint Maarten within the stipulated period. Complaints are made about, among other things, the rejection of the appeal to the disclosure provision (art. 49.3 ALL). It also addresses the question whether the suspect is liable for punishability of art. 49 ALL required quality. Another complaint concerns the sentencing. The conclusion is to reject the appeal in cassation.


ATTORNEY GENERAL

AT THE

SUPREME COURT OF THE NETHERLANDS

Number 20/00973 C

Session January 12, 2021

CONCLUSION

EJ Hofstee


CHANEL BROWNBILL

born in ST MAARTEN] on [JANUARY 11TH 1981,

hereafter: the suspect.

I. Introduction

The Common Court of Justice of Aruba, Curaçao, Sint Maarten and Bonaire, Sint Eustatius and Saba (hereinafter: the Court) has, by judgment of 5 March 2020 (i), upheld the judgment of the Court of First Instance of Sint Maarten (hereinafter: the General Court) of 17 April 2018 in respect of the sentence imposed and the accused sentenced to imprisonment for a term of 18 months, of which 12 months conditional with a probationary period for a period of 3 years, minus the time spent in insurance , and to community service consisting of a community service sentence of 240 hours, or alternatively 120 days in custody, and (ii) upheld the judgment of the General Court for the remainder (with addition of grounds). The suspect has been convicted of 1.

On behalf of the suspect, Mr. Th.J. Kelder, lawyer in The Hague, proposed five grounds of appeal in writing.

II. Proven statements and means of evidence

3. The Court of Justice, by upholding the judgment of the General Court, declared against the accused that:

“1.

he deliberately made several deliberate acts in the period from 1 January 2010 to 31 December 2017 in the Netherlands Antilles or Sint Maarten,

if the person, pursuant to the General National Ordinance on Land Taxes, was obliged to file an Income Tax return within a set period, and did not do so within the set period

after all, he has deliberately failed to submit an Income tax return for the tax years 2009, 2010, 2012, 2013, 2014, 2015 and 2016 within the set term,

while the consequence of this could be that disadvantage could arise for the Netherlands Antilles and / or for one of the island territories and / or for Sint Maarten;

2.

in the period from 1 July 2009 to 15 August 2016 in the Netherlands Antilles and / or Sint Maarten, several times intentionally,

if the person who, pursuant to the General National Ordinance on Land Taxes, was obliged to file a Turnover Tax return within a set period, but did not do so within the set period,

after all, he has deliberately, on a monthly basis, failed to submit a tax return for the company [A] within the set period for the periods in 2009, 2010, 2012, 2013, 2014, 2015 and 2016,

while the consequence of this could be that disadvantage could arise for the Netherlands Antilles and / or for one of the island territories and / or for Sint Maarten. ”

4. The charges and statements of evidence relate to periods starting on January 1, 2010 (count 1) and on July 1, 2009 (count 2) respectively. At that time Sint Maarten was still part of the Netherlands Antilles and the disclosure provision as referred to in art. 49, third paragraph, General National Ordinance on Land Taxes in the Netherlands Antilles (NA) of 3 August 2001. This explains that the indictment also includes the phrase that failure to submit the tax returns on time may cause harm to the Netherlands Antilles. As is known, Sint Maarten has been an independent country within the Kingdom of the Netherlands since October 10, 2010 and this Kingdom country now has its own General National Ordinance on Land Taxes (StM) and its own Code of Criminal Procedure (StM).

5. The statements of proof are based on the following evidence, taken over by the Court and supplemented here and there by it (with the omission of the footnotes):

“ Evidence

On the basis of the content of the legal evidence referred to in the footnotes to this judgment, the General Court establishes the following facts and circumstances.

1. The suspect has set up a one-man business under the name [A]. This one-man business was founded on September 12, 2007 and registered in the register of the Chamber of Commerce and Industry of Sint Maarten and is engaged in construction activities according to the information contained therein. This follows from the extract from the register of the Chamber of Commerce and Industry dated December 2, 2016, as shown below:

” Date: December 02, 2016

Registered in the Commercial Register of the St. Maarten Chamber of Commerce & Industry: [A].

Trade name: [A]

Legal form: Sole Ownership

Date established: September 12, 2007

Date registered: September 12, 2007

Activity category: Construction works

Description: Construction

Business address: [a-street 1]

Area name: [place]

Name Official: [suspect]

Function: Statutory Director

Title: Managing Director

Address: [a-street 1], [city]. “

2. In the records of [B] NV, invoices from [A] for the period July 2009 to August 2016 were found. As far as the Court could ascertain, these invoices were paid by checks from [C] NV to [C] NV. A]. The checks were cashed and then deposited into bank account number [001] in the name of [suspect], after which a considerable part of them were always withdrawn in cash.

3. The file contains the following overview of the amounts relating to invoices and credited to the aforementioned bank account of the suspect by means of cashed checks:

[[ Follows an overview of the months, dates of credits and the corresponding amounts in $ for the years 2009, 2010, 2012, 2013, 2014, 2015 and 2016, AG ]

[A total of $ 1,261,078.20 was therefore credited in the charged years 2009, 2010 and 2012 through 2016.

4. The first monthly returns of the Tax on Company Turnover for [A] were received by the Tax Authorities on December 19, 2017. At that time, returns were filed for all months from 2010 to 2016. Subsequently, on February 2, 2018, the returns for the months of October to December 2009 were received, on February 5, 2018, the returns for the months of July and August 2009. and on February 6, 2018, the returns for the months of January to June 2009 and the month of September 2009.

5. In addition, with regard to the charged period, the accused only prepared income tax returns on 15 December 2016; these tax returns received by the tax authorities on 19 December 2017 1 relate to the years 2010 to 2013.

Subsequently, on December 19, 2017, the returns for the years 2014 and 2015 were received, on February 5, 2018, the return for the year 2009 and on February 6, 2018, the return for the year 2016. For the years 2009 to 2013, it does not appear explicitly when the related tax return forms have been issued. The tax forms relating to the years 2014, 2015 and 2016 were issued on April 1, 2015, April 1, 2016 and April 1, 2017 respectively.

6. As a witness on December 17, 2016, the suspect stated the following to the police:

“I always receive checks from the port for [A]. I collect them myself or send someone to collect the checks.

With the check I go to the bank and I have this check paid out. “

7. During his second interrogation as a suspect, the suspect also stated the following to questions from the police:

“[Reporting officer:] In addition to the [D], have you had any other companies or employers?

[Suspect:] Yes, I have the company [A]. You show me an April 2012 salary slip from [E]. I think I worked there for a few months. My work consisted of entering data from various companies in the Quickbooks program. That’s an accounting program.

[Reporting officer:] What is your education?

[Suspect:] I did a correspondence course in accounting. That course lasted 6 months and I got my diploma. Then I got the job with [involved person 1]. Before that I had already bought the [D]. About that time I also founded the company [A]. After that I had some jobs at various companies in accounting. I did the same work there as with [involved person 1]. “

8. During his third interrogation as a suspect, when asked, the suspect stated, among other things, the following:

“[Reporting agent:] We will show you a contract between [A] and the port in which it is agreed that [A], as a subcontractor to [F], will perform the work on ‘dredging material movement, transportation of the material’.

[Suspect:] I know that I have signed a contract with the port. This must be the contract.

[Reporter:] We show you a number of invoices from [A] to the port in which reference is made to [F].

[Suspect:] I cashed all the checks. That is my responsibility. I am the only one who can cash the checks.

[Reporting agent:]: Under point 8. of the contract it is stated: ‘For audit Purpose please also inform Harbor on completion of works and followup of that for Phase 2 all taxes must be up to par and proven’. It says here that all taxes must be paid. You have not.

[Suspect:] At that time I had not yet submitted my tax returns and therefore did not show the Haven that I had paid my taxes. Only after I (the General Court: on 26 September 2016) became a Member of Parliament, I asked [person 2] to put my tax papers in order.

III. The first means (the voluntary disclosure scheme)
6. The first ground of appeal complains that the Court of Appeal has relied on the disclosure provision as referred to in art. 49, third paragraph, General National Ordinance on Land Taxes (hereinafter: ALL) 2 and the defense based thereon that the Public Prosecution Service is inadmissible in its prosecution has wrongly or at least on incorrect and / or incomprehensible grounds.

Defense defense
7. The defense of the defense counsel referred to in the ground of appeal, which she put forward at the hearing of the Court of Justice on 14 February 2020 in accordance with her pleading note, entails the following (with the omission of the footnotes):

2. Inadmissibility of the Public Prosecution Service

A. Inadmissibility of the OM: the guaranteed ALL procedure

[…]

B. Inadmissibility of the Public Prosecution Service: the voluntary disclosure scheme

[…]

75. The index of the tax documents of [accused] attached by the defense shows the various dates of receipt by the tax authorities. It follows from this that the tax documents of [suspect], as sent to the GEA and the Public Prosecution Service, by means of various e-mail messages and of which receipt was confirmed by the GEA on 23 March 2018, that the first documents of [suspect] by the Tax Authorities the month of January 2017 have been received. This period is well before the period in which [suspect] was heard as suspect in the present case, being the month of March 2017.

76. But even if the period in which [suspect] was heard as a witness, being 17 December 2016, is taken into account, [suspect] approached the Tax Authorities well in advance of the aforementioned period and started the procedure for filing tax returns. And that [suspect] did this entirely voluntarily, is all the more confirmed by the statement of the accountant / bookkeeper of [suspect], [involved person 2], from which it appears that she approached him on Sunday 4 December 2016 with the request that the to do annual accounts for him. A date that is well in advance of the dates on which [suspect] was heard by the investigation team as a witness -17 December 2016 – and as suspect – for the first time on 15 March 2017 – and as a result, was confronted with the facts as charged.

77. In its judgment dated April 17, 2019, the GEA considers that it cannot follow the defense in its assertion that the fact that [accused] approached [involved person 2] on December 4, 2016 to put his administration and tax matters in order constitutes confirmation that [suspect] has voluntarily repented. According to the GEA, the main reason for this is that it is objectively obvious that the approach to an accountant at that time had to do with the searches carried out on 23 August 2016 at a friend and distant cousin of [suspect], [person concerned 3], at its company called [G] NV, and on November 28, 2016 at the port of Sint Maarten.

[…]

87. The aforementioned judgment 3applied to the present case leads, first of all, to the finding that [suspect] never received a document, let alone a letter, from the Tax Authorities, from which a statement regarding the failure / incorrect / incomplete filing of a tax return to the Tax Authorities should appear. In fact, since the start of the present investigation, the defense has made numerous inquiries for receipt of documentation on additional assessments / assessments from the tax authorities and the Public Prosecution Service. The Tax and Customs Administration has never responded or issued an assessment and the Public Prosecution Service has replied in the negative. And even until the substantive handling of the criminal case of [suspect] at the GEA on March 29, 2018, such documents were not forthcoming on the part of the Public Prosecution Service [whether or not on behalf of the Tax Authorities].

88. The aforementioned also applies to the second (2nd) judgment cited by the GEA, being the judgment in HR 22 May 2001. 4

[…]

92. The above-mentioned considerations of the Supreme Court applied to the present case, it appears, as with regard to the first (1st) cited judgment, that here, too, [accused] did not receive any document from the tax authorities prior to the hearing as a witness on 17 December 2016, from what he could infer in any way and therefore had to reasonably suspect that the Tax and Customs Administration was or would become aware of the inaccuracy / incompleteness of the tax return. The only circumstance that the GEA continues to cling to are the searches carried out at [involved person 3], [G] NV and the port – at the time not even at [suspect] – and then the objective fact is only based on a suspicion .

93. The consideration given by the GEA that, from an objective point of view, [accused] had to suspect from the searches carried out and also suspected that the tax officials would become aware that he wrongly did not submit income tax and Company Turnover Tax returns, then neither on and should be rejected.

94. Taking into account the aforementioned, the defense is still of the opinion that [suspect] ex. art. 49 paragraph 3 ALL voluntarily – prior to any confrontation with the present charges – submitted the returns in question to the tax authorities. And please note, at that time, [suspect] did not receive any assessments or an additional assessment from the tax authorities. With this he could in no way be aware or become aware of the facts as charged in the present case.

95. Now that [suspect] has voluntarily submitted the relevant declarations to the Tax Authorities, there is no basis for the Public Prosecution Service to prosecute [suspect] with regard to art. 7 and 49 General National Ordinance Land Taxes, artt. 27 and 28 National Ordinance on Income Tax, artt. 8 and 49 General National Ordinance Land Taxes, and artt. 10 and 11 National Ordinance Tax on Business Turnover. As a result, of which the Public Prosecution Service must be declared inadmissible in its prosecution against [suspect]. ”

Court considerations

8. The considerations of the Court of First Instance regarding the disclosure provision, adopted by the Court of Justice, read (with the footnotes omitted):

“The voluntary disclosure regulation is laid down in Article 49, third paragraph, of the General National Ordinance on Land Taxes and implies that the penal provisions described in the first and second paragraphs remain inapplicable ” if the person on whom the obligation rests still makes a correct and complete declaration or correctly. and provides complete information, data or instructions before he knows or should reasonably suspect that the Inspector or one of the officials and persons referred to in Article 48, second paragraph, is or will become aware of the inaccuracy or incompleteness ” .

For the answer to the question whether or not this voluntary disclosure provision can be effectively invoked, it is not decisive whether the taxpayer – subjectively seen – at the time of filing the tax return suspected that officials of the Tax and Customs Administration would be traced. of the fact that he had not yet made a correct and complete declaration, but whether he – objectively seen – should reasonably suspect at that time that those officials were aware of it or would become aware of it (cf. HR 30 March 2010, ECLI: NL: HR: 2010: BK6922, NJ 2010,199). Therefore, a return must be made before the taxpayer knows or should reasonably suspect that the tax officials are or will become aware that a correct and complete return has not been made.

The file shows that on 23 August 2016, searches were carried out at the home address of a friend and distant cousin of the suspect, [involved person 3], and at the address of his company called [G] NV. November 2016 searches took place at the port. The suspect was heard as a witness by financial investigators of the TBO on December 17, 2016 in the presence of his counsel, after he was informed that he did not have to answer questions that could burden him. During this interrogation, the suspect was confronted, among other things, with invoices from his sole proprietorship [A] for work allegedly performed for the port. The suspect stated that he was instructed to do so by [involved person 3].

The defense sees the circumstance that the suspect approached the accountant [involved person 2] on December 4, 2016 to put his administration and tax affairs in order, a confirmation that he voluntarily repented.

The General Court cannot follow the defense in this. The main reason for this is that it is objectively obvious that approaching an accountant at that time had to do with the searches described above. After all, the turnover and profit that the suspect has made with [A] are clearly related to (alleged) activities for the port that [party concerned 3] would have commissioned. Especially now that the suspect has been generating turnover and profit in this way since 2009, it is crying out for an explanation as to why he approached an accountant just six days after the searches at the port. That is why the suspect was repeatedly asked at the hearing what the reason was. The obvious thought was not invalidated by him. On the contrary, the suspect consistently invoked his right to remain silent. In those circumstances, it must be held, in the Court’s view, that the reason for contacting an accountant was that invoices from [A] could be found during the searches.

This means, in other words, that the General Court considers that the accused must objectively suspect from the searches, and also suspected that tax officials would become aware that he wrongly failed to file Income Tax and Business Turnover Tax returns. This means that the appeal to the voluntary disclosure scheme is stranded. ”

9. The Court has supplemented these considerations with the following:

“ Additional motivation with regard to the admissibility of the Public Prosecution Service

[…]

With regard to the voluntary disclosure scheme

The counsel has argued that the suspect is entitled to a successful appeal to the voluntary disclosure scheme because the suspect has voluntarily submitted declarations to the tax authorities on his own initiative.

The Court concurs with the findings of the General Court in this respect on page 6, third and fourth paragraphs, of the judgment and adopts those considerations. 5 The Court also considers the following.

It follows from the documents submitted by the defense at first instance that the Income tax returns for the tax years 2010 to 2015 were submitted to the Tax and Customs Administration on 19 December 2017. The tax return forms for the years 2010 to 2013 do state 15 December 2016 as the date of signing, but these documents were not submitted to the Tax Authorities until 19 December 2017. The latter date is decisive for a successful appeal to the voluntary disclosure scheme.

The same documents submitted by the defense show that the income tax returns for the years 2009 and 2016 were filed on 5 February 2018. These documents also show that the tax returns for the years 2010 to 2016 were filed on December 19, 2017 and for the year 2009 in February 2018.

On March 15, 2017, the suspect was searched, arrested and detained. On 15, 16 and 17 March 2017, the suspect was heard by the police as a suspect. It was not until some time later, namely from December 19, 2017, that the suspect filed the Income Tax and Business Turnover Tax returns. So then the suspect already knew that the tax officials were aware or would become aware that he had wrongly not filed Income Tax and Business Turnover Tax returns. For that reason alone, the suspect cannot successfully appeal to the voluntary disclosure scheme.

The defense counsel’s argument that the accused was already voluntarily turned in by calling in the accountant [involved person 2] on December 4, 2016, is not supported by the law and is therefore rejected.

Moreover, the Court agrees with and adopts the considerations of the General Court as set out on page 6, last paragraph, and page 7, paragraphs 1 to 3, of the judgment. Despite repeated questions from the Attorney General and the Court, the suspect has also refused to give an explanation on appeal why he approached an accountant just six days after the searches in the port. The Court agrees with the General Court that the accused had objectively suspected from the raids at the port and also suspected that tax officials would become aware that he had wrongly not filed Income Tax and Business Turnover Tax returns.

The appeal to the voluntary disclosure scheme is rejected in view of the foregoing. “

Legal framework 6

10. Art. 49 ALL NA read, as far as relevant here:

“1. With imprisonment of up to six months or a fine of up to 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 filed within the set term, is incorrect or incomplete

[…]

2. Anyone who is deliberately guilty of an offense as described in the first paragraph, will be punished with imprisonment of no more than four years or a fine of no more than NAF. 100,000.00 or, if the under-levied tax exceeds this amount, at most twice the amount of the under-levied tax, or with both penalties.

3 Subsections 1 and 2 shall not apply if the person subject to the obligation still submits a correct and complete declaration or provides correct and complete information, data or instructions before he knows or should reasonably suspect that the Inspector or one of the 48, second paragraph, officials and persons referred to as the inaccuracy or incompleteness is or will become known.

11. As stated above, the independent position of Sint Maarten within the Kingdom of the Netherlands has resulted in legislative matters, among other things, in that the General National Ordinance on Land Taxes has come into force specifically for Sint Maarten. There are no major or substantial deviations from the previous General National Ordinance on Land Taxes in the Netherlands Antilles; these are mainly editorial changes. Art. 49 ALL StM has, in so far as relevant here, been replaced by the following:

“1. With imprisonment of up to six months or a fine of the fourth category or, if the under-levied tax exceeds this amount, no more than once the amount of the under-levied tax, or with both penalties, if the action or failure to act as a consequence that could cause disadvantage for Sint Maarten, shall be punished by anyone who is obliged by virtue of this national ordinance to:

making a declaration within a set term, which is not filed within the set term, is incorrect or incomplete;

[….]

2. Anyone who is deliberately guilty of an offense as described in the first paragraph, will be punished with imprisonment of no more than four years or a fine of no more than one hundred thousand guilders or, if the insufficient tax is higher than this amount, at most twice the amount of the under-levied tax, or with both penalties.

3. Subsections 1 and 2 shall not apply if the person on whom the obligation rests still submits a correct and complete declaration or provides correct and complete information, data or instructions before he knows or should reasonably suspect that the Inspector or one of the 48, second paragraph, officials and persons referred to as the inaccuracy or incompleteness is known or will become known. “

12. Art. 49 ALL (both NA and StM) can be compared to a large extent with art. 69 AWR, which, insofar as relevant here, entails the following with effect from 1 January 2018: 7

“1. Anyone who deliberately fails to submit a tax return […] within the prescribed period […], if the offense is to impose too little tax, will be punished with imprisonment not exceeding four years or a fine of the fourth category or, if this amount is higher, at most once the amount of the under-levied tax.

[…]

3. The right to prosecute on the basis of this article lapses if the guilty still makes a correct and complete report or provides correct and complete information, data or directions before he knows or should reasonably suspect that one or more of the the officials referred to in Article 80, paragraph 1, if the inaccuracy or incompleteness is known or will become known. By way of derogation from the first sentence, the right to criminal prosecution on the basis of this article does not lapse insofar as the guilty still makes a correct and complete declaration, or provides correct and complete information, data or directions relating to, or relating to, income. from a substantial interest as referred to in Article 4.12 of the Income Tax Act 2001 or on income from savings and investments as referred to in Article 5.

13. The disclosure provision is an example of a special ground for exclusion from prosecution. 8 Such a ground for exclusion from prosecution is personal and only has a personal effect. It is considered special that the voluntary disclosure scheme can be of service when the offense has already been committed. 9 If the suspect has made a timely and ‘correct’ repentance and the Public Prosecution Service nevertheless proceeds to prosecution in that case, it will be declared inadmissible in the concrete case. 10 The idea behind the repentance provision is that repentance should not be discouraged, because the result could well be that the person concerned continues to evade tax for fear of prosecution.11The purport of the disclosure provision (under Dutch law at that time still art.68, third paragraph (old) AWR) was fine by the Supreme Court in its judgment of 18 March 1997, ECLI: NL: HR: 1997: ZD0659, NJ 1998/71 put into words:

“6.6.

[…] Know that, on the one hand, it should be promoted as much as possible that the data subject takes voluntary corrective action, so that the tax loss caused or threatened to cause his previous infringement can be remedied or prevented and, on the other hand, that the data subject is prevented as much as possible by the fear of criminal prosecution leads to incorrect declarations also in subsequent declarations in order to prevent previous irregularities relevant to taxation from being discovered. “

14. The right to criminal prosecution therefore lapses – both former Antillean law and under current law of Sint Maarten (and also under Dutch law) – if the person obliged to declare still makes a correct and complete report, or provides correct and complete information, data or instructions. before he knows or should reasonably suspect that the officials designated by law 12 are known or will become aware of the inaccuracy or incompleteness.

15. The words ‘still make a correct and complete declaration, or provide correct and complete information, data or instructions’, also in the light of the purport of the disclosure provision as set out by the Supreme Court, raise the question whether the voluntary disclosure scheme does not only pertain to the event that an incorrect or incomplete declaration was initially filed (after which a clean sweep is taken). Do not advocate the phrase that states that the said officials with the inaccuracy or incompletenessis known or will be known? This would mean that the voluntary disclosure scheme does not pertain to total negligence – the default – due to ‘not filing or not filing a report on time (within the set term)’. After all, the person obliged to declare has not yet done anything or has not done something on time. The suspect is suspected of this in the present case, that is to say, of not reporting the crime within the set term.

16. The authors Valkenburg and Van der Werff write about this legal question in their handbook on Fiscal Criminal and Criminal Procedure Law:

“In connection with the limited explanation, the question deserves separate attention as to whether it is still possible to repent if in the first instance a complete failure to make a declaration or spontaneously provide information. Wattel considers this conceivable. However, given the rationale of the disclosure provision – making it easier for the taxpayer to terminate a previously initiated evasion – this is less obvious. The wording ‘still correct and complete (…)’ does not point in the direction of a broad interpretation either. In addition, the phrase ‘officials the inaccuracy or incompleteness is or will become known’ or must be interpreted very broadly because it would include noticing the complete negligence. ” 13

17. Wattel came to a different view in his 1990 Tax and Criminal Procedure Law (with regard to then Article 68, third paragraph, AWR):

“The disclosure provision can have significance for the offense of failure to report and for the offense of not complying with a spontaneous obligation to provide information (see no. 50). After all, it is possible to make a declaration that has not been made or not provided, to provide it spontaneously, to provide information before an official is aware that the report or that information has not been provided. In that case, the disclosure provision will only work if the declaration or information provided as yet is ‘correct and complete’. ” 14

Later Wattel seems to have revised this position. He then writes:

“This distinction was motivated by the government with what we believe is an inconcluent argument about interest profit (we do not see that there would be a difference between defaults and crimes on that point and there is also a tax interest scheme) and about doubts about the voluntary nature of many cases. of repentance in practice (after all, such doubt can also exist in the case of offenses) (Parliamentary Papers II 1993/94, 23 470, no. 3, point 6.6 (Explanatory Memorandum)). The remark that repentance in the event of absenteeism is not quite conceivable: too late remains too late (Parliamentary Papers 1993/94, 23 470, no. 8 (MvA), VN 1995, p. 2611) ”. 15

18. Apparently, the General Court and the Court of Appeal have ruled that the disclosure provision of the former Netherlands Antilles and that of Sint Maarten (Article 49, third paragraph, ALL) does not exclude the possibility that the person obliged to declare not making a declaration within the set in the sense of the ALL, is admissible in his appeal to the disclosure provision. In my discussion of the remedy I start from this implicit judgment.

19. Whether the voluntary disclosure scheme can be successfully invoked will, in each case, strongly depend on the factual circumstances and must be assessed according to objective criteria. In its judgment of HR 30 March 2010, ECLI: NL: HR: 2010: BK6922, NJ 2010/199, the criminal chamber, citing a judgment of the tax chamber of the Supreme Court, considered, among other things:

“2.5. The Supreme Court states first of all that, in view of the wording of art. 69, third paragraph, AWR, for the answer to the question whether or not this provision can be effectively invoked, it is not decisive whether the taxpayer – subjectively seen – at the time of correction of a tax return submitted by him that officials of the Tax and Customs Administration would discover the inaccuracy or incompleteness of that return, but whether – objectively speaking – he should reasonably suspect at that time that those officials were aware of the inaccuracy or incompleteness of that (cf. HR May 2, 2001, LJN AB1375, BNB 2001/319). ” 16

Discussion of the first plea

20. In the presentation of the plea states that an expression of the will of the taxpayer to be adviser to still correct and complete declaration to do under the circumstances is indeed a legitimate appeal to the voluntary disclosure provision (here referred to in Art. 49, third paragraph, ALL StM). For this reference is made to HR 15 February 2008, ECLI: NL: HR: 2008: BC4330, insofar as it is considered therein:

“3.1. The plea alleges violation of Article 67n of the General Law on State Taxes (hereinafter: AWR), because the Court ruled that there was a voluntary improvement within the meaning of this provision.

3.2.
The plea cannot lead to cassation because it lacks interest. It is true that the Court of Appeal ruled at the end of section 5.4 as stated in the ground of appeal, but in addition, the Court of Appeal ruled in section 5.6 that the interested party could deduce from the contents of a press release from the Ministry of Finance (dated 15 January 2002) that (with which the Court apparently refers to the expression, to his counsel, of his will to file a correct and complete declaration) would be regarded as a voluntary improvement as referred to in Article 67n AWR. The latter judgment, which the Court’s decision carries independently, is not appealed in cassation. ”

21. According to the submitter of the plea, it is clear from this judgment – which judgment, I note, relates to the tax voluntary disclosure scheme as referred to in Art. 67n AWR 17 – that, contrary to the Court’s view, “an expression of the taxpayer towards his adviser of his will to file a correct and complete tax return under certain circumstances does indeed invoke the disclosure provision of Article 49, third paragraph, ALL [can] justify ”. 18 This proposition will not be elaborated further. Apparently the submitter of the plea is referring to the argument of the defense on appeal, that the accused approached his accountant [involved person 2] to put his administration and tax affairs in order.

22. In this regard, the Court of Justice first concurred with the General Court’s statement that it does not follow the defense in its argument that the fact that the accused approached [person concerned 2] on 4 December 2016 for the above reason would be a confirmation that the suspect voluntarily repented, because it is objectively obvious that approaching an accountant at that time had to do with the searches at the port. This judgment is not incomprehensible.

23. The Court has also held that the defense’s argument is not supported by law. This judgment is neither incorrect nor incomprehensible. Art. 49, third paragraph, ALL NA (old) and art. 49, third paragraph, ALL StM speak of a correct and complete declaration as yet made or of the provision of correct and complete information, data or instructions. As noted above, these provisions correspond to art. 69, third paragraph, AWR. For me, however, it is not about the substantive meaning of making the correct and complete declaration, but about its recognizability . Valkenburg and Van der Werf conclude from the wording in art. 69, third paragraph, AWR is based on the fact that the recovery must be notified to the tax authorities. 19In the judgment of May 22, 2001, ECLI: NL: HR: 2001: AB1760, NJ 2001/699, the Supreme Court ruled:

“4.7. The provisions of art. 68, third paragraph (old), AWR, now art. 69, third paragraph, AWR, the so-called disclosure provision, means that a person concerned can only invoke this provision if he / she has proceeded to submit an additional declaration or provide additional information in a timely manner, in such a way that it must be reasonably clear to the tax authorities that the data subject is thereby correcting his earlier incorrect declaration or information provided ”(italics, AG). 20

24. The reference of the author of the plea to HR February 15, 2008, ECLI: NL: HR: 2008: BC4330, BNB 2008/111, m.nt. In my opinion Albert does not work. In that case, the taxpayer had instructed his lawyer to disclose matters to the tax authorities with regard to previously concealed accounts abroad (tax return, also known as voluntary correction). The reason for his reflection was a press release regarding the so-called ‘accounts project’. 21The lawyer contacted the tax authorities to inquire about the conditions for voluntary correction of the previously submitted tax return. His client’s name remained unmentioned. On the same day, the Inspector had sent a letter to the taxpayer stating that it appeared that he would have a foreign account and requesting further information about this. This letter reached the taxpayer a few days after the lawyer had contacted the tax authorities. A day after receiving this letter, the lawyer contacted the tax authorities again. Then the lawyer did mention the name of his client and made the details of the foreign account known. The Amsterdam court was asked whether it had been the intention of the taxpayer to provide full disclosure with regard to his concealed foreign bank accounts before receiving the letter from the Inspector. The court answered this question in the affirmative:

“5.4. Interested party attorney has stated that the reason for the anonymous filing in the first instance lies in the uncertainty about possible criminal prosecution on the basis of the first paragraph of Article 225 of the Criminal Code, which in principle is also possible after a voluntary correction has been made. and of which the inspector could file a report in view of the provisions of Article 162 of the Code of Criminal Procedure. Article 69, fourth paragraph, AWR does not exclude such criminal prosecution, according to the authorized representative.

The Court considers it plausible that for this reason interested parties authorized representative did not immediately disclose the identity of the interested party to the inspector and, when the inspector so demanded, was willing to hold further consultations with the interested party before doing so. Furthermore, the Court of Appeal held that the conditions referred to under 2.2.7. description given by Mr. Van Aalst of the course of affairs on Monday, January 28, 2002 plausible, which implies that the interested party on Monday morning, January 28, 2002, after further consultation with Mr. De Gier about the telephone conversation with the inspector on Friday January 25, 2002, again and without further conditions a tax return was made, after which mr. De Gier repeatedly tried to reach the Tax Authorities in Hilversum by telephone that same day, and that interested party only then, in the afternoon of that day, has taken note of the content of 2.2.4. said letter from the inspector.

In contrast to the substantiated statements of the interested party and his authorized representative, the inspector did not demonstrate that the interested party had no intention at the time (i.e. Monday morning 28 January 2002, before he had taken note of the letter from the inspector) to do the correct and complete declarations. The Court is of the opinion that under these circumstances, assessed in conjunction, on Monday 28 January 2002 there was a voluntary improvement by the interested party as referred to in Article 67n AWR.

5.5. In view of the foregoing, the Court considers it plausible that if the interested party had not received the letter from the inspector of Friday, 25 January 2002 by Monday, January 28, 2002, he would have provided full opening of cases with regard to both the bank accounts in Luxembourg and the one in Switzerland.

The fact that he did not provide full information in this regard until months later is due to the content of the letters from the inspector, who insisted that there could no longer be a voluntary correction, and the possible resulting criminal consequences with regard to interested parties. attorney was concerned on account of what had already been discussed with the interested party on 25 January 2002.

5.6. In the aforementioned circumstances, the Court finds it sufficiently plausible by the interested party that, even before receiving the letter from the inspector dated 25 January 2002, it was his intention to fully open cases with regard to his concealed bank accounts in Luxembourg and Switzerland and the resulting bank accounts. has wanted to accept additional assessments of income tax and wealth tax resulting from the law. The interested party was entitled to deduce from the content of the press release of 15 January 2002 that his initiative would be regarded as a voluntary improvement as referred to in Article 67n AWR.

A correct, at least reasonable application of the law requires that the intersection of interested parties of the aforementioned initiative by the receipt of the letter dated January 25, 2002 may not be held against him. “

25. The Supreme Court upheld this ruling, without commenting on the exact moment and the way in which the interested party’s repentance and the relevant expression of will towards his counsel had taken shape:

“3.1. The plea alleges violation of Article 67n of the General Law on State Taxes (hereinafter: AWR), because the Court ruled that there was a voluntary improvement within the meaning of this provision.

3.2. The plea cannot lead to cassation because it lacks interest. It is true that the Court of Appeal ruled at the end of section 5.4 as stated in the ground of appeal, but in addition, the Court of Appeal ruled in section 5.6 that the interested party could deduce from the contents of a press release from the Ministry of Finance (dated 15 January 2002) that (with which the Court apparently refers to the expression, to his counsel, of his will to file a correct and complete declaration) would be regarded as a voluntary improvement as referred to in Article 67n AWR. The latter judgment, which the Court’s decision carries independently, is not appealed in cassation. ”

26. Furthermore, it is argued in the explanation of the plea that the judgment of the Court that the moment of final submission of the complaint is decisive is incorrect, now that “phased repentance is also accepted”, which would be all the more contradictory because on behalf of the accused argued that the contact with the Tax and Customs Administration took some time and that various improvements in previous tax returns turned out to be necessary, while the tax returns already mentioned December 15, 2016 as the date of signing. In addition, KMG Demandt’s publication, ‘Turning in: better just in time, than not!’ Cited in NTFR-A 2014/6. Here too, however, there is no further elaboration in the writing, in particular with regard to the question why this phased disclosure should also apply with regard to the disclosure provision as referred to in art. 49 ALL (as it used to apply to the Netherlands Antilles and now applies to Sint Maarten). To this extent, the arguments put forward in the document do not meet the requirements that a ground of appeal must meet.

27. Incidentally, if it must be assumed that the arguments put forward on this point in the document must be regarded as a correctly formulated partial complaint of the plea, it will come up against what I have said above about (briefly stated) the expression of will. Of a phased repentance in its proper sense 22is out of the question here. According to the findings of the Court of Appeal – not disputed in cassation – the relevant income tax and business turnover tax returns were not submitted to the Tax Authorities until 19 December 2017. The fact that it would have been signed in December 2016 does not change that. The judgment of the Court that the submission date in the present case is decisive for a successful appeal to the voluntary disclosure scheme is therefore not incorrect, not incomprehensible and sufficiently motivated.

28. Another arrow that has the means on his bow is aimed at the judgment of the Court that the searches at the port can be regarded as a moment when the suspect objectivelyhad to reasonably suspect that the relevant officials were aware of or would become aware of the inaccuracy or incompleteness of the reports. The Court is said to have based its judgment on this mainly on the assertion that the suspect did not want to make a statement about the fact that six days after those searches he contacted his accountant. However, according to this partial complaint, what the accused “can explain in this context” is pre-eminently a subjective matter that is not decisive in the assessment of an appeal to the disclosure provision; for this reference is made to HR 2 May 2001, ECLI: NL: HR: 2001: AB1375.

29. Be aware of the following. In HR May 2, 2001, ECLI: NL: HR: 2001: AB1375, the case was different from the present one. The suspect in that case was a director and co-shareholder of a BV A house search was carried out at the BV in connection with an investigation into stock exchange fraud. The person concerned was present during the search and was also questioned himself. After the search had taken place, the person concerned reported to the tax authorities and indicated that he wanted to voluntarily correct previously submitted income tax and wealth tax returns. The point was that he had not previously reported a number account with a Swiss bank. The court ruled that there was no voluntary improvement, because the tax return had only been corrected at a time when the person concerned already had the suspicion that the officials of the tax authorities would (could) quickly detect the incompleteness of the tax return he had previously filed. According to the court of appeal, this did not alter the fact that there was a serious possibility that the judicial authorities and / or the tax authorities, in the context of an investigation into malicious acts in stock exchange transactions and tax fraud, launched against the employer of the person concerned, revealed the existence of the Swiss bank account or the connection. between that account and the data subject would not or only partly have discovered or could have related it to the data subject, because it was sufficient that this could be done – as admitted on behalf of the person concerned at the hearing – and that the interested party took this possibility into account. The Supreme Court overturned the decision of the court and considered as follows:

“3.7. […] The Court of Appeal held – not contested in cassation – that at the time of the correction of the tax returns by the interested party, there was a serious possibility that his Swiss bank account would not be found or linked during the investigation of the judicial authorities and the tax authorities. with stakeholder. This assumption precludes the interested party from knowing that the inaccuracy or incompleteness of his tax return was known or would become known. Furthermore, that opinion does not permit any other conclusion than that the interested party could not reasonably suspect then – objectively seen – that the Inspector was or would become aware of the inaccuracy or incompleteness of the interested party’s declaration for the year in question. In view of the wording of Article 67n, it is then not decisive whether,

30. I would also point out that the Court has established (objectively) the following factual course of events:

i. On 23 August 2016, searches took place at the address of a friend and distant cousin of the suspect, named [involved person 3], and at the address of his company [G] NV;

ii. on November 28, 2016, searches took place at the port;

iii. On December 17, 2016, the suspect was heard as a witness by a financial investigator of the TBO in the presence of his counsel. During this interrogation, the suspect was confronted with invoices for activities that his sole proprietorship [A] performed in the port; activities that the suspect claims to have performed on behalf of [involved party 3];

iv. On 15 March 2017, the suspect was searched and detained after being arrested. The suspect was subsequently interrogated on March 15, 16 and 17, 2017;

v. the suspect first submitted the said returns to the tax authorities from 19 December 2017.

31. It is clear from the findings and considerations of the Court, contrary to what the submitter of the plea takes the view, that in the Court’s rejection of the appeal on the voluntary disclosure scheme, the subjective presumption of the accused and the searches at the port (in the case of [ data subject 3]) were not considered decisive. This partial complaint is therefore based on an incorrect reading of the judgment of the Court. After all, the Court based the dismissal on the objective findings (i) that the suspect was searched on 15 March 2017, (ii) the suspect was subsequently arrested and subsequently detained, (iii) that he 5, 16 and 17 March 2017 as the suspect was interrogated by the police, (iv) that he was not heard until a considerable time later, from 19 December 2017, filed the income tax and business turnover tax returns and (v) that he already knew at that time that the tax officials were aware or would become aware that he had incorrectly failed to file income tax and business turnover tax returns. It was that search, arrest, detention and interrogation that established the existence of the suspicion. Already on the basis of all this, the accused cannot successfully appeal to the voluntary disclosure scheme, according to the Court. Subsequently, the Court of Justice considered that it was, moreover, in line with the considerations of the General Court, and that, despite repeated questions from the Attorney General and the Court of Justice, the accused also appealed,23 and that the Court agrees with the General Court that the accused must also objectively suspect from the searches at the port, and also suspected that tax officials would become aware that he was wrongly not filing income tax and business turnover tax returns. had submitted.

32. The contested judgment of the Court is not erroneous in law, is not incomprehensible and is sufficiently reasoned. Notwithstanding the plea, the Court has invoked the disclosure provision as referred to in art. 49, third paragraph, ALL and the defense based on it that the Public Prosecution Service should be declared inadmissible in its prosecution on sound grounds.

33. The plea fails in all parts.

IV. The second remedy (the procedure prescribed in the ALL)
34. The second ground of appeal complains that the Court of Appeal declares the defense seeking inadmissibility of the public miniseries in the prosecution of the accused – because the Director of the Tax Authorities did not request Sint Maarten to do so and because the (Article 55 of) the ALL prescribed procedure has not been followed in this respect – has been wrongly rejected, at least on incorrect and / or incomprehensible grounds.

35. The plea is substantiated in the explanatory memorandum with a reference to paragraphs 29 to 72 of the plea on appeal, from which, according to the submitter of the plea, it appears that the defense counsel of the accused has argued that the public prosecution service does not -is admissible in his prosecution because it was not allowed to prosecute now that the Director of the Tax Authorities Sint Maarten has not requested prosecution and the procedure prescribed by the ALL has not been followed in this regard. Counsel defended that pursuant to art. 24 to 28 ALL the Tax and Customs Administration has its own procedural possibilities to judge a case, which requires coordination between the Tax and Customs Administration and the Public Prosecution Service,

Defense defense

36. In so far as relevant here, the advocacy note includes the following (with the omission of the footnotes):

” A3. Conclusion

65. Pursuant to the provisions of the ALL, it should be clear that these contain regulations which require a treatment according to the rules of reasonableness and fairness of the taxpayer and enable the taxpayer to be properly and timely informed so that corrections can be made, and may rely on its application; This certainly in view of the fact that at least 80% of taxpayers in Sint Maarten submit their declarations too late or in any case after set terms, that this practice has been accepted by the Tax and Customs Administration and is only punished with a fine. why this treatment is not due to [suspect].

66. The ALL leaves no room for the tax authorities to request criminal prosecution if no investigation has been carried out by itself. That this is the case in the present case is confirmed by the GEA:

‘From the explanatory memorandum to the original regulation, the Court deduces that with Article 55 the legislator mainly intended to regulate the investigation by tax officials, operating under the responsibility and direction of the Inspector and / or Director.’ 67. The Court agrees with this that prosecution has commenced outside the Director for tax facts. After all, the last part of the cited article says that the prosecution for these facts is requested by the Director ifit deems it necessary. In the present case, the Director has not considered prosecution necessary; after all; the actions of [person concerned 4] as Head of Tax Affairs cannot be placed on a par with that of the Director. The Explanatory Memorandum does not provide the basis for that assumption either.

68. Taking the above into account, the defense cannot concur with the conclusion of the CEA from the Explanatory Memorandum to the original regulation. For example, the GEA decides:

‘Insofar as the Public Prosecution Service has not complied with the formulated obligation with this, the seriousness of this must be properly qualified. After all, the Director should have returned the official report immediately (Article 55, second paragraph, second sentence). It is not possible to see which legally respectable interests of the suspect could be served by this. The legislator has most likely not envisaged this meaningful exercise. The General Court deduces from the explanatory memorandum to the original regulation that the legislature intended primarily to regulate investigation by tax officials, operating under the responsibility and direction of the Inspector and / or Director, by means of Article 55. That situation is clearly not an issue here. ‘

69. The sole finding in the cited Explanatory Memorandum concerns the handling of the official report, whereby the GEA is of the opinion that the absence of the obligation to send it forthwith does not relate to investigations carried out by the Public Prosecution Service, but by tax officials. However, this does not mean that an authority to prosecute can also be distilled there outside of the Director. After all, the last phrase of this paragraph is clear about this. The judgment of the Tax Chamber of 27 January 2020 supports this position; after all, if this interpretation could be extended to a prosecution authority outside the Director, the Court of Taxation Division would not have reached a decision that the tax judge has jurisdiction. Contrary to what the GEA believes, ic There is a situation as described in the cited consideration of the GEA and it is by no means sufficient to establish a possible violation of standards, as considered by the GEA. With the judgment of the Court of Taxation Chamber dated January 27, 2020, the path to the tax judge is open and this path must first be followed before the meaning and scope of Article 55, second paragraph ALL – nb raised by the GEA itself – on unjustified and on incorrectly, must make substantial penalties by turning the tax offenses into a purely criminal matter and thereby setting aside the regulations of the ALL altogether.

70. The fact that the Public Prosecution Service is free in the event of tax fraud to prosecute on other grounds than on the basis of the ALL, does not affect the judgment of the Court of Taxation of 27 January 2020 in the present case. On the contrary, contrary to what the GEA believes, in this case, there is a situation as described in the cited consideration of the GEA and a single observation of a possible violation of standards, as considered by the GEA, will by no means suffice. With the decision of the Court of Taxation Chamber dated 27 January 2020, the path to the tax judge is open and this path must first be followed before the meaning and scope of Article 55, second paragraph ALL – nb

71. The ALL was not created to assist the Code of Criminal Procedure. Remedies and legal protection should not be deprived of assigning any purpose to the ALL other than that for which it was written.

72. In view of the above, the Public Prosecution Service should be declared inadmissible in its criminal proceedings against [suspect], now that the procedure as guaranteed in the ALL has been set aside and the Public Prosecution Service has taken the seat of the tax authorities by itself to consider tax aspects that should not be dealt with in a criminal case before a criminal court, but by the tax authorities and the Board of Appeal for tax cases. ”

Court considerations
37. At first instance, with regard to the admissibility of the prosecution service, the General Court considered the following (with the footnotes omitted):

“ Formal preliminary questions

[…]

As stated, the admissibility of the Public Prosecution Service has been questioned by the defense. The counsel has argued that the prosecution should be declared inadmissible in the criminal proceedings against the suspect. To this end, it argued that (i) the procedure guaranteed in the General National Ordinance on Land Taxes has been set aside. […]

The General Court finds as follows.

(i). With regard to the first argument, which in the view of the defense constitutes an irreparable violation of norms, the Court of First Instance states that the legal consequence referred to in Article 413 of the Code of Criminal Procedure (hereinafter: Sv) of the prosecution’s inadmissibility criminal prosecution is eligible only in exceptional cases. This is only possible if a violation of standards consists in that officers responsible for the investigation or prosecution have seriously infringed the principles of due process, as a result of which, deliberately or with gross disregard of the interests of the accused, his right to a fair hearing of his case. has been neglected.

In addition, the application of that legal consequence is limited to irreparable violations of the standard and that the character, weight and scope of the standard, the seriousness of the violation, the harm caused by it and the extent must always be taken into account. of culpability of the person who violated the norm. The defense may be expected to clearly motivate, on the basis of these assessment factors, why an alleged violation of standards should lead to the most serious legal consequence. The defense has not met this requirement. Therefore, this part of the defense can be disregarded.

The Court will nevertheless address the substance of the allegation. In essence, the position of the counsel comes down to the fact that the police and the judiciary have misunderstood that the primacy of the prosecution for offenses that have been made punishable in the General National Ordinance on National Taxes, lies in all cases with “the Director of Taxes”. In the opinion of the General Court, this position is based on an incorrect reading of the national ordinance.

It is important in this context that police officers of the Counter-Undermining Team (hereinafter: TBO) – part of the Criminal Investigation Cooperation Team (hereinafter: RST) – came across the suspicion during a large-scale corruption investigation that the suspect was guilty of ( deliberately) failing to submit tax returns within the set term, incorrectly and / or incompletely, of Income Tax and Business Turnover Tax returns, as punishable in Article 49, first in conjunction with second paragraph, of the General National Ordinance on Land Taxes. This suspicion was subsequently investigated further and the police officers were also authorized to do so. After all, Article 54, first paragraph, of the General National Ordinance on Land Taxes reads as follows:”In addition to the persons referred to in Article 184 of the Code of Criminal Procedure, the Inspector as well as the officials and persons of the Tax Authorities designated for this purpose by national decree are responsible for tracing the offenses made punishable by tax ordinance. (…)”

It is not in dispute that the police officers of the TBO, insofar as they were not already a police officer or officer of the National Criminal Investigation Department in this country, have all been appointed as the aforementioned police officer, as referred to in Article 184 DCCP.

The discussion is about the meaning and scope of Article 55, second paragraph, of the General National Ordinance on Land Taxes. That provision reads as follows: “All official reports concerning the offenses made punishable by this national ordinance shall be sent to the Director. The Director shall file the reports concerning criminal offenses, in respect of which detention or pre-trial detention has been applied or a house without the express permission of the occupant has entered, with the seized objects, immediately forward to the public prosecutor. The other official reports with the seized objects will be sent to the public prosecutor if he deems prosecution desirable. “

Contrary to what the counsel is of the opinion, this provision cannot be understood as anything other than that the power to decide on the appropriateness of the prosecution is (in any case) transferred to the public prosecutor, as soon as the suspicion of a a criminal offense has been taken into custody or pre-trial detention or has entered a home without the explicit consent of the occupant. In such cases, the statutory regulation makes the public prosecutor and not the director competent to prosecute. The case against the suspect concerns such a case. After all, the suspect has been detained, among other things, in connection with the suspicion of violation of Article 49 of the General National Ordinance on Land Taxes

38. The Court concurs with these considerations. However, the following statement of the General Court has not been accepted by the Court of Justice and has been replaced by the following: 24

“ Additional motivation with regard to the admissibility of the Public Prosecution Service

With regard to the power of the Public Prosecution Service to prosecute

The Court takes over what the Court of First Instance appropriately considered on pages 3 to 5 in the first six paragraphs under (i) of the judgment. The Court does not agree with the last paragraph on page 5 of the judgment and substitutes the following consideration.

From the explanatory memorandum to the original regulation, the Court of Appeal, like the General Court, deduces that with Article 55 of the General National Ordinance on Land Taxes (ALL), the legislator primarily intended the investigation by tax officials, operating under the responsibility and supervision of the Inspector and / or Director to regulate. 25 In the present case, however, the investigation was carried out by the persons referred to in Article 184 of the Code of Criminal Procedure, namely police officers of the Anti-Undermining Team. The Court will therefore not discuss the comments made by the counsel on whether or not to follow the procedure referred to in Article 55 ALL.

In addition, the Court considers that it has also not been shown that the suspect has been harmed in any legally respectable interest. ”

Legal framework

39. Art. 413 Sv StM reads, insofar as relevant here:

“1. If standards, including both statutory regulations and rules of unwritten law, have been violated during the preliminary investigation or the investigation in court, even if the case is dealt with by the claim of the Public Prosecution Service or the request of the accused or his counsel, rectify the violation of the norm, in accordance with the nature and scope of the violated norm, or order that this be done. He can give the necessary instructions for this.

2. There will be no remedial action if the violation of standards can no longer be remedied and the legal consequences thereof already arise from any statutory regulation.

3. […]

4. If repair as referred to in the first and second paragraph cannot take place, the violation of the norm will remain without consequences, except in the case of the fifth paragraph.

5. The judge may, in his final judgment, either ex officio or at the request of the Public Prosecution Service or at the request of the accused or his legal counsel, in the event of a violation of essential standards for the conduct of the proceedings, after a reasonable consideration of all the issues involved. interests, decisions, insofar as a special legal provision does not already provide for the consequences of the violation of standards:

a.that the level of the penalty will be reduced in proportion to the seriousness of the breach of standards, if the harm caused by the breach can be reasonably compensated in that way;

b. that the results of the investigation, insofar as they have been obtained directly by means of the violation of standards, are not admitted to evidence of the offense if it is reasonably plausible that the use of the investigation results has seriously damaged the defendant’s defense ;

c. that the Public Prosecution Service will be declared inadmissible if, due to the violation of standards, the case cannot be dealt with that meets the requirements of a fair trial.

6. […]

7. In assessing the violation of the norm and the consequences to be attached to it, as well as in weighing up the interests at stake, the judge will take into account in particular the character, weight and scope of the norm, the seriousness of the violation of the norm, the harm it caused, and the degree of culpability of the person who violated the norm. “

And art. 1 provides that for the purposes of this national ordinance and the further regulations and implementing rules based on it, “preliminary investigation” is understood to mean “the investigation prior to the hearing in court” and furthermore that investigative investigation is the investigation “in connection with criminal offenses under custody. of the public prosecutor with the aim of taking criminal decisions ”.

40. Art. 413 Sv StM resembles art. 359a Sv Ned. There are certainly differences in structure and use of words (violation instead of default, for example), but the decision-making and assessment framework as expressed in the fifth paragraph and the seventh paragraph is very similar to that referred to in the first and second paragraphs of art. 359a Sv. Already in its judgments of March 30, 2004, ECLI: NL: HR: 2004: AM2433, NJ 2004/375, m.nt. Buruma (drain pipe) and February 19, 2013, ECLI: NL: HR: 2013: BY5321, NJ2013/308, m.nt. Cologne (non-certified assistant public prosecutor) has explained to the Supreme Court the scope of art. 359a DCCP, so when there is a breach of form as referred to in this article and which (legal) conditions must be met before one of the conditions referred to in art. 359a Sv, whereby – and this is important for the present case – the requirements that are imposed on a defense in this respect and the grounds for the courts that apply in this regard have also been discussed. In the aforementioned judgment of March 30, 2004, the Supreme Court regarding art. 359a Sv Ned. considered:

“3.4.2. The application of art. 359a Sv is first of all limited to breaches of form committed during the preliminary investigation. Pursuant to art. 132 Code of Criminal Procedure must be understood to mean the investigation that precedes the investigation in court. According to legal history, these breaches of form also include in particular violations of standards in the investigation. […]

3.4.3. Furthermore, art. 359a Sv only relates to irreparable defaults. If the default has been rectified or can still be rectified, this provision does not apply. According to the Explanatory Memorandum cited above, the judge must strive as much as possible to rectify the default.

3.5. If, within the above limits, there is a breach of form and the legal consequences thereof are not apparent from the law, the court must assess whether any legal consequences should be attached to that breach of form and, if so, which legal consequences are eligible. In doing so, he must take into account the requirements referred to in the second paragraph of art. 359a Sv mentioned factors. After all, the legal consequence will have to be justified by these factors.

The first factor is “the importance of the rule violated”.

The second factor is “the seriousness of the absenteeism”. The circumstances under which the default was committed are important in assessing this. The degree of culpability for the absenteeism can also play a role in this.

The third factor is “the disadvantage it causes”. In assessing this, it is important, among other things, whether and to what extent the defendant has actually been harmed in his defense by the default.

It should be noted that if it is not the suspect who is affected by the non-compliance with the rule in the interest that the violated standard is intended to protect, in the case to be tried, as a rule, no legal consequences will have to be attached to the default.

3.6.1. It is assumed that – in view of the assessment factors as referred to in art. 359a, second subsection, Code of Criminal Procedure – the legal system must be understood as such that a breach of form within the meaning of that article does not always have to lead to one of the legal consequences described there. Art. 359a Sv formulates a power and not a duty, and partly in the light of the aforementioned legal history offers the judge that has established a breach of form the possibility to refrain from applying one of the legal consequences referred to there and to suffice with the judgment that an irreparable failure to form has been committed. The scope of the regulation of art. 359a Sv is not, after all, that a breach of form must in any case lead to any advantage for the suspect (cf. HR 23 January 2001, NJ 2001, 327).

[…]

3.6.5. Inadmissibility of the prosecution in the prosecution comes as in art. 359a Sv foresee legal consequences only in exceptional cases. This only applies in the event of a breach of form consisting in the fact that officers charged with the investigation or prosecution have seriously infringed the principles of due process, deliberately or with gross disregard of the interests of the accused, his right to a fair hearing of his case. fallen short.

3.7. The foregoing means that a decision to apply a legal consequence as referred to in art. 359a Code of Criminal Procedure must be taken and motivated on the basis of the factors discussed above under 3.5 and mentioned in the second paragraph of the article.

With a view to this, the defense that invokes violation of a breach of form as referred to in art. 359a of the Code of Criminal Procedure, it is required that it is stated clearly and with reasons on the basis of those factors up to which date in art. 359a Sv defined legal consequence this should lead. Only on such a defense is the judge obliged to give a reasoned decision.

Furthermore, the above consideration implies that the court may omit an investigation into the correctness of the factual basis of the defense on the basis of its judgment expressed in its decision that the relevant defense cannot lead to Declaring the Public Prosecution Service inadmissible in the prosecution, to exclude evidence or to reduce the sentence or that the defense – were it justified – could only lead to the mere conclusion that an irreparable breach of form has been committed.

41. In its judgment of 1 December 2020, ECLI: NL: HR: 2020: 1889, the Supreme Court recently considered that it sees no reason to make substantial changes to the assessment framework as follows from the above-mentioned judgments. However, he has nuanced or adjusted the precise formulation of some of the criteria included therein. In the first place, this concerns the limitation to breaches of form committed during “the preliminary investigation” against the suspect. In the second place, it concerns the – in view of the aforementioned starting point of subsidiarity, also to be discussed in this order – conditions for the application of the legal consequences of a reduction of the sentence, the exclusion of evidence or the declaration of inadmissibility of the Public Prosecution Service in the prosecution. But, the Supreme Court emphasizes, even with these nuances and adjustments, the judgments laid down in previous case law on the application of art. 359a Sv in concrete cases of significance. Finally, the Supreme Court makes some observations about the assessment of the factual basis of defenses that seek to apply art. 359a Sv. I quote from the judgment of HR December 1, 2020, ECLI: NL: HR: 2020: 1889 the following:26

” Failure to form” in the preliminary examination “and beyond

2.2.1 The application of Article 359a DCCP is, among other things, limited to breaches of form committed during “the preliminary investigation” against the suspect. Pursuant to Article 132 CCP, this must be understood to mean the investigation prior to the hearing in court. These breaches of form also include, in particular, violations of standards in the investigation. Pursuant to Article 132a of the Code of Criminal Procedure, investigation should be understood to mean the investigation in connection with criminal offenses under the authority of the public prosecutor with the aim of taking decisions in criminal proceedings. 27

In addition, “the preliminary investigation” in Article 359a DCCP relates exclusively to the preliminary investigation against the suspect with regard to the offense charged against him, which the judge referred to in Article 359a DCCP has to rule on. Article 359a DCCP therefore does not apply if the default was committed outside the context of this preliminary investigation. (Compare HR March 30, 2004, ECLI: NL: HR: 2004: AM2533, legal consideration 3.4.2 and HR April 18, 2017, ECLI: NL: HR: 2017: 706, legal consideration 4.3.)

2.2.2 This limitation to breaches of form committed during “the preliminary investigation” against the suspect does not, however, exclude the possibility that the question may arise as to whether a legal consequence should be attached to an unlawful act against the suspect that is beyond the scope of article 359a DCCP. […]

It follows from this and other case law of the Supreme Court discussed in the Opinion of the Advocate General under 76-99 that under certain circumstances a legal consequence can be attached to a breach of form by an official charged with investigation and prosecution, but that was not committed during the preliminary investigation against the suspect as referred to in 2.2.1, or an unlawful act against the suspect by any other officer or person than such an investigating officer. In this case law, criteria are laid down that are not always identical in terms of wording, but which implies as a general overarching criterion that a legal consequence may be appropriate if the relevant breach of form or the relevant unlawful act has had a decisive influence on the course of the investigation into and / or the (further) prosecution of the suspect in this regard of the charged fact. In such a case, the answer to the question whether a legal consequence is attached to the breach of form or unlawful act, and if so, what legal consequence, also depends on the nature and seriousness of that breach or act. In doing so, a link can be sought with the standards that have been developed in the case law of the Supreme Court with regard to the various legal consequences that can be attached to a breach of form within the meaning of Article 359a DCCP. partly depending on the nature and seriousness of that omission or action. In doing so, a link can be sought with the standards that have been developed in the case law of the Supreme Court with regard to the various legal consequences that can be attached to a breach of form within the meaning of Article 359a DCCP. partly depending on the nature and seriousness of that omission or action. In doing so, a link can be sought with the standards that have been developed in the case law of the Supreme Court with regard to the various legal consequences that can be attached to a breach of form within the meaning of Article 359a DCCP.

[…]

Inadmissible

2.5.1 In its judgment of 30 March 2004, ECLI: NL: HR: 2004: AM2533, legal consideration 3.6.5, the Supreme Court formulated the following standard with regard to the declaration of inadmissibility of the Public Prosecution Service:

“Inadmissibility of the prosecution in the prosecution comes as in art. 359a Sv foresee legal consequences only in exceptional cases. This only applies in the event of a breach of form consisting in the fact that officers charged with the investigation or prosecution have seriously infringed the principles of due process, deliberately or with gross disregard of the interests of the accused, his right to a fair hearing of his case. fallen short. ”

2.5.2 The Supreme Court clarifies the application of this standard as follows. The purport of this criterion is that in the event that such a serious infringement of the right of the accused to a fair hearing of his case has been committed that there can no longer be a fair trial 28within the meaning of Article 6 ECHR, the prosecution is declared inadmissible in the prosecution. This must involve an irreparable infringement of the right to a fair trial that has not been or cannot be remedied in a way that meets the requirements of a proper and effective defense. In addition, this infringement must be able to bear the far-reaching judgment that – in the words of the European Court of Human Rights – “the proceedings as a whole were not fair”. In the very exceptional case that on this ground the declaration of inadmissibility of the Public Prosecution Service comes into the picture in the prosecution, However, it is not necessary – in so far as the Supreme Court adjusts the previously used standard – to establish that the relevant infringement of the right to a fair trial took place deliberately or with gross disregard for the interests of the suspect. There may be grounds for inadmissibility on this ground, for example, in the event that the suspect has been induced by an investigating officer or a person for whose actions the police or the public prosecution service is responsible to commit the offense for which he is being prosecuted. , while his intention had not already been aimed at this before (cf. HR 29 June 2010, ECLI: NL: HR: 2010: BL0655), or in which behavior of the police and the judiciary led to the court making the finding of truth impossible (cf. .29

2.5.3 In cases where one or more breaches of form have occurred which initially compromised the accused’s right to a fair hearing, but which have been remedied to a sufficient degree to allow the fairness of the trial as a whole, 2.5.3. In principle, the criterion discussed under 2.5.2 does not allow the Public Prosecution Service to be declared inadmissible in the prosecution. However, it cannot be ruled out, as considered under 2.3.4, that in such a case a reduced sentence will take place to compensate for the actual disadvantage.

Assessment of the factual basis of defenses

2.6.1 If a defense is put forward that a breach of form has occurred and that this should lead to one of the legal consequences referred to in Article 359a paragraph 1 DCCP, the court must assess whether the facts and circumstances on which that defense is based have become plausible. . In that examination of the factual basis, the court may limit itself to those findings that are necessary in connection with the decision on the legal consequence stated in the defense.

2.6.2 The court may, however, reject such a defense without examining the factual basis thereof if it concludes that what has been put forward – were it correct – does not require one of the legal consequences referred to in Article 359a paragraph 1 DCCP, for example because at the most, what has been put forward can lead to the mere observation of a formal defect. The court also has the option to start from the correctness of the factual basis of the defense and to proceed to apply the legal consequence on that basis. This last method may in particular give rise to defenses relating to breaches of form that can give grounds for no more than a limited degree of reduced sentence and which are based on a not implausible factual basis,

2.6.3 The court is further free to take into account, in response to a defense and also on its own initiative, in the sentencing to any degree the adverse consequences for the suspect of the exercise of powers during the investigation, even if those consequences are not. caused by a breach of form (cf. in connection with media attention on the criminal case HR 13 October 2015, ECLI: NL: HR: 2015: 3024 and with regard to the use of force by the police HR 15 October 2019, ECLI: NL: HR: 2019 : 1590). ”

Primary discussion of the second plea

42. The Court of Justice first concurred with the General Court’s finding that the defense did not fulfill the requirement that the defense may be required to clearly state, on the basis of the assessment factors, why an alleged breach of standards should lead to the most serious legal consequence. lead and that therefore part (i) of the defense can be disregarded. Apparently, by conceding on this point with the judgment of the General Court, the Court of Justice wished to express that the defense relied on on appeal did not pass that test either.

43. In the light of what the defense has put forward in this respect and in view of the case law of the Supreme Court cited above, I do not consider that judgment to be evidence of an incorrect interpretation of the law, not incomprehensible and sufficiently substantiated. In doing so, I have taken into account that the Court of Justice, following the General Court, took into account in its judgment that the provisions of art. 413 Sv StM referred to as the legal consequence referred to in criminal prosecution of the Public Prosecution Service being declared inadmissible in criminal prosecution is only eligible in exceptional cases and that this only takes place if a violation of standards consists of officials responsible for the investigation or prosecution having seriously due process that deliberately or with gross disregard of the interests of the accused infringed his right to a fair hearing of his case. It has not become apparent to me from the documents in the case that there was cause for a declaration of inadmissibility on another ground as referred to in the judgments delivered on 1 December 2020, in which the Supreme Court clarified that criterion still applied by the Court.

44. The judgment referred to in marginal 42 supports the rejection of the defense seeking inadmissibility of the Public Prosecution Service in the prosecution of the accused. I note in this regard that neither the plea nor the explanation of the plea explains how, in what way, in the plea of the counsel on appeal “the required elements are sufficiently addressed”. I have not discovered them. The other considerations of the General Court with which the Court agrees and the additional consideration of the Court are therefore superfluous considerations. A plea that complains about this turns against a ground on which the decision is essentially not based. 30

45. This means that the remedy already fails for those reasons.

46. If the Hoge Raad does not follow my view, the following applies.

View the remedy in conjunction with the explanation (three sub-complaints)

47. In the explanation of the plea, it is stated with regard to the substantive rejectionformulated three sub-complaints of the defense. These lend themselves to a joint discussion. Firstly, it is complained that “as far as the Court of Appeal considers the proposition that art. 55 ALL only or especially the investigation by tax officials, operating under the responsibility and direction of the Inspector and / or Director, intended to regulate ”, according to the passage from the explanatory memorandum quoted by the Court, this interpretation does not relate to the express intention of the legislator to give the tax administration “a significant influence on the prosecution” in the context of an efficient division of labor between the public prosecutor and the tax administration. A limitation of art. 55, second paragraph, ALL to the official reports originating from the officials referred to by the Court is not obvious, according to the author of the plea, now that art. 55 ALL relates to “all official reports concerning the offenses made punishable by this national ordinance”. The second sub-complaint elaborates on this and implies that insofar as the Court of Appeal has based its rejection of the defense on the proposition that the General National Ordinance on Land Taxes places the primacy of prosecution for tax offenses with the Public Prosecution Service in cases where detention or pre-trial detention has been applied, or has entered a home without permission, the grounds of the Court are also not understandable.

Legal framework

48. The following provisions are important in this regard:

Article 54 ALL StM :

“1. In addition to the persons referred to in Article 184 of the Code of Criminal Procedure, the Inspector as well as the officials and persons of the Tax Authorities designated by national decree are responsible for tracing the offenses made punishable by tax ordinance. Such a designation will be published in the journal in which official notices are posted by the country.

2. The Inspector as well as the officials and persons of the Tax and Customs Administration referred to in the first paragraph are at all times authorized to seize objects susceptible to seizure under the Code of Criminal Procedure. They can demand their extradition for this purpose.

3. When investigating an offense made punishable by the tax ordinance, the officials and persons referred to in the first paragraph shall have access to any place, insofar as this is reasonably necessary for the performance of their duties. They are authorized to be accompanied by certain persons designated by them. Article 155 of the Code of Criminal Procedure applies in full to entering homes.

4. By national decree containing general measures, rules may be laid down with regard to the requirements that the officials and persons designated pursuant to subsection 1 must meet. “

Article 55 ALL StM :

“1. The officials and persons referred to in section 54, subsection 1, shall draw up an official report of their findings and communicate this in a copy to the offender.

2. All official reports concerning the offenses made punishable by this national ordinance shall be sent to the Director. The Director shall immediately forward to the public prosecutor the official report concerning criminal offenses in respect of which detention or pre-trial detention has been applied or in respect of which a residence has been entered without the express permission of the occupant, together with the seized objects. The director shall forward the other official reports with the seized objects to the public prosecutor if he deems prosecution desirable.

3. The public prosecutor is authorized to return the case to the Director for settlement, who can then proceed with it in accordance with article 56.

4. The provisions of Article 14, second paragraph, of the Code of Criminal Procedure do not apply in cases in which the Director has not sent the official report to the public prosecutor. ”

Art. 14 Code of Criminal Procedure StM :

“1. The officers of the Public Prosecution Service at the court of first instance are authorized to prosecute criminal offenses in all island territories, without prejudice to the provisions of Article 4, fifth paragraph, of the Uniform National Ordinance on the Judicial Organization.

2. The Attorney General shall supervise proper prosecution of criminal offenses and may issue the necessary orders to the Public Prosecutor, head of the public prosecutor’s office. ”

Art. 184, first paragraph, Code of Criminal Procedure StM :

“1. The following are responsible for the investigation of criminal offenses:

a.the officers of the police;

b. the officers of the National Criminal Investigation Department, as provided for by law;

c. the extraordinary agents of the police, insofar as they have been appointed for this purpose. “

49. The explanatory memorandum to art. According to the contested judgment, ALL entails:

“In their capacity as investigating officers, the tax officers must draw up an official report as soon as possible of the criminal offenses detected by them or of what they performed or found during the investigation. In the event of entry, an official report is even drawn up within a prescribed period of two days. In the context of an efficient division of labor between the Public Prosecution Service and the tax administration, it is stipulated that all official reports drawn up with regard to tax offenses are sent to the Director. The tax administration thus has an important influence on the prosecution. If special means have been used (such as entering a house against the will of the resident), the Director is always obliged to send the official report to the public prosecutor. The Public Prosecution Service is also free to prosecute tax fraud on grounds other than this national ordinance. In that case, the officer need not leave the lead to the Director. If the Public Prosecution Service decides not to prosecute a case, the file is returned to the Director, who can then handle the case administratively. ”31

50. Art. 55 ALL is closely related to art. 80, second paragraph, AWR, which stipulates that by way of derogation from art. 156 Sv All official reports concerning offenses made punishable by the tax law are sent to the government of the tax authorities that subsequently the reports concerning offenses, in respect of which detention or pre-trial detention has been applied or a house against the will of the resident has entered, and immediately submits the seized objects to the competent public prosecutor. The board shall forward the other official reports and any objects seized to the public prosecutor, if it deems prosecution or further prosecution by the public prosecutor desirable. 32In the judgment of September 15, 1986, ECLI: NL: HR: 1986: AC4311, NJ 1987/304 33the Supreme Court considered that in art. 80 AWR on the one hand expresses that the government of the State Taxes in the first instance determines the desirability of a criminal prosecution in tax matters, and on the other hand that the power to prosecute rests with the Public Prosecution Service, and that the requirement of a ‘ Prealable decision of the government of the State Taxes exception suffers if “judicial acts of prosecution have already been carried out”. The Supreme Court also considered that a reasonable interpretation of art. 80 AWR implies that the list of coercive measures (detention, pre-trial detention or entering a home against the will of a resident) is not exhaustive;

51. The second paragraph of art. 55 ALL prescribes in principle that “all reports concerning the offenses made punishable by this national ordinance must be sent to the Director”. 34 If the latter decides that criminal prosecution is desirable, he sends the official report with the seized objects to the public prosecutor, who then assesses whether he will prosecute. If the public prosecutor decides not to do so, he can return the case to the tax authorities for settlement; art. 55, third paragraph, ALL gives him that space. In cases in which the Director has not sent the official report to the public prosecutor, art. 14, second paragraph, DCC not applicable. That means that in thatcases, the Attorney General lacks supervisory and mandating authority.

52. Excluded from these regulations are reports concerning criminal offenses in respect of which detention or pre-trial detention has been applied or a home has been entered without the express permission of the admirer, according to the second paragraph of art. 55 ALL. In that case , the Director must immediately forward the official report containing the seized objects to the public prosecutor. The public prosecutor then decides on possible prosecution.

Subsidiary discussion of the remedy (the partial complaints)

53. Back to the partial complaints. In my opinion, art. 55, second paragraph, ALL unmistakably not written for a situation such as the present one in which there is “a large-scale corruption investigation” in which police officers of the Anti-Undermining Team “have come up against the suspicion that the suspect has been guilty of the crime for years (deliberately). failure to submit income tax and Business Turnover Tax returns within the set period, incorrectly and / or incompletely, as punishable in art. 40, first in conjunction with second paragraph, of the General National Ordinance on Land Taxes ”. I recall that HR September 15, 1986, ECLI: NL: HR: 1986: AC4311, NJ1987/304 regarding art. 80 AWR has determined that the requirement of a ‘prealable’ decision of the government’s tax administration is an exception if “judicial acts of prosecution have already been carried out”. As the Court of First Instance rightly and not incomprehensibly considered which considerations were adopted by the Court, (i) there was already a major corruption investigation, (ii) the police officers of the TBO were under art. 54, subsection 1, ALL authorized to further investigate that suspicion, (iii) art. 55, second paragraph, ALL are not understood as otherwise than that the power to decide on the appropriateness of the prosecution is (in any case) transferred to the public prosecutor, as soon as, in connection with the suspicion of an offense punishable by national ordinance, custody or pre-trial detention has been applied or a house has been entered without the explicit consent of the occupant, and (iv) the statutory regulation in those cases makes the public prosecutor competent is up to prosecution. The case against the accused is one such case. After all, on 15 March 2017, the suspect was suspected of violating art. 49 ALL arrested and detained, and in addition, on the same day, under the direction of the examining magistrate and in the presence of the public prosecutor, a house search for seizure took place in the suspect’s home. Furthermore, the Court of Appeal, following the General Court, ruled that the position of the counsel – that the police and the judiciary have disregarded that the primacy of prosecution for offenses made punishable in the General National Taxes ”is based on an incorrect reading of the national ordinance. This judgment is not inaccurate in law and is not incomprehensible.

54. In addition, the Court of Appeal inferred from the explanatory memorandum to the original regulation that the legislator with Art. 55 ALL mainly intended to regulate the investigation by tax officials, operating under the responsibility and direction of the Inspector and / or Director, but that in the present case the investigation by the investigators referred to in art. 184 Sv StM – namely police officers of the TBO – has been carried out. It is for this reason that the Court of Appeal raised the comments of the counsel on whether or not to follow the provisions of art. 55 ALL has not discussed the aforementioned procedure.

55. This judgment does not seems to me in itself wrong, but the fact I do not mean that in the explanatory memorandum it can be read in the context of an effective division of labor between the prosecution and the tax authorities require that all the matter of official reports drawn up for tax offenses are sent to the Director. 35 It cannot be inferred from this that, according to the intention of the legislator, the obligation to forward an official report drawn up to the Director only relates to official reports drawn up by tax officials. In addition, pursuant to the second paragraph of art. 55 ALL this duty looks at allofficial reports relating to “offenses made punishable by this national ordinance”. This is the case in the present case. However, unlike the submitter of the plea, I do not read in the reasoning of the General Court adopted by the Court and the additional reasoning of the Court of Justice that the Court of Justice takes a different position on that point. If I see it correctly, the Court has left that open.

56. This does not alter the fact that it is also implied in those considerations that, now that the investigation has been carried out by investigating officers of the TBO and not by tax officials, art. 55 ALL can be disregarded. It seems to me that the author of the plea can be admitted that under Art. 55, second paragraph, ALL, viewed in conjunction with the explanatory memorandum, the Director should have been given the said official report, which he should then have forwarded to the public prosecutor without delay. The Court may have recognized this with its final consideration in this regard, to the effect that, moreover, it has not been established that the accused has been harmed in any legitimate interest.

57. I will soon turn to the third part of the complaint about that interest. First I notice about art. 55 ALL the following to conclude. Contrary to what the submitter of the plea argues, neither does the provisions of art. 55 ALL, nor from the explanatory memorandum that also afterthe Director would have forwarded the official report to the public prosecutor the Director had been involved or had a say in the decision whether or not to prosecute the suspect and he should have taken the lead for an effective consultation division of labor between the two authorities on the prosecution decision. This ‘lead’ is taken by the Director if the exceptional case referred to in the second paragraph of art. 55 ALL. But as soon as there is such an exceptional case (as in this case), the judgment as to the expediency in its entirety falls to the Public Prosecution Service. The public prosecutor will be in charge of the criminal investigation and will decide whether to prosecute the suspect. The Director plays no role in making that decision.

58. Now for the third part of the complaint. With regard to the judgment of the Court that it has not become apparent to him that the suspect has been harmed in any legally respectable interest, the submitter of the plea points out that “the counsel has undisputedly argued that 80% of the taxpayers in Sint Maarten or at least submits a tax return after the set term, and that this practice is accepted by the tax authorities and is only punishable by imposing a fine ”. The submitter of the plea concludes from this that “it is thus plausible that the tax authorities would have held this case if he had been called to a judgment, or had ruled against prosecution by the Public Prosecution Service”.

59. What exactly the author intends to achieve by this has not become clear to me. In addition, the proponent of the remedy also fairly easily comes to this conclusion and the assessment and decision framework as referred to in art. 413 Sv StM seems to be losing sight. Art. 55 ALL contains rules that pertain to – in short – the relationship between the Tax and Customs Administration on the one hand and the public prosecutor as representative of the Public Prosecution Service on the other, in the context of an efficient division of labor in the event of tax offenses. If it could already be said that the regulatory procedural rules have not been fully observed with regard to the sending of the said reports, drawn up by the police officers of the TBO, then in the present case that will at most lead to the conclusion that the Director of the Tax and Customs Administration has been wrongfully dismissed. The suspect is out there in his criminal capacity, which he already had at the time. In the present context, there is no irreparable violation of the essential standard for the conduct of the proceedings as a result of which, with regard to the accused, the requirements of a fair trial as referred to in art. 413, paragraphs 1 and 5, Sv StM and the case law of the Supreme Court discussed above. In the present context, there is no irreparable violation of the essential standard for the conduct of the proceedings as a result of which, with regard to the accused, the requirements of a fair trial as referred to in art. 413, paragraphs 1 and 5, Sv StM and the case law of the Supreme Court discussed above. In the present context, there is no irreparable violation of the essential standard for the conduct of the proceedings as a result of which, with regard to the accused, the requirements of a fair trial as referred to in art. 413, paragraphs 1 and 5, Sv StM and the case law of the Supreme Court discussed above.

60. It follows from the foregoing that the partial complaints cannot lead to cassation either and that the ground of appeal cannot succeed in that context either.

61. In any event, the second plea fails.

V. The third plea (count 2; quality offense)

62. The third ground of appeal complains that with regard to the fact proven proven under 2, the Court of Appeal wrongly, or at least inadequately motivated, ruled that the suspect can be regarded as “the person who, pursuant to the General National Ordinance on Land Taxes, was obliged to do so within a set period of time. making a declaration ”within the meaning of art. 49 ALL.

63. The plea is explained with the statement that the suspect does not claim the criminal offense of art. 49 ALL has the required quality, now that the proven fact under 2 relates to tax on company turnover and thus the person who according to the ALL was obliged to file a declaration within a set period was not the suspect as a natural person, but his company [A]. Because this is a quality offense and the suspect lacks the quality required for punishability, the suspect cannot be regarded as a perpetrator of what has been proven proven under 2, according to the proponent of the plea.

Primary discussion of the third plea

64. Let me begin by remarking that, in my opinion, the plea is substantiated by new arguments, and therefore not put forward on appeal, which are interwoven with valuations of a factual nature and require an examination of a factual nature, so that they cannot be put forward in cassation. be able to take the test; there is no room for this in cassation. Neither at first instance before the General Court nor on appeal before the Court has the defense argued that Art. 49 ALL would be an implicit or explicit criminal offense or that the suspect does not have the status of a taxable person or taxpayer within the meaning of the (tax) legislation of Sint Maarten; it has not in any way called this point into question.

65. Quite the contrary. Both in her plea before the General Court and in her pleadings before the Court, the counsel assumed without doubt that the suspect was the person who had to file a tax return and in this context was the taxpayer / taxpayer. For example, in accordance with her pleadings submitted to the Court and attached to the file, the defense counsel has consistently argued that the accused did indeed present the returns (par. 52), that he, as a taxpayer, should have been informed in good time in this case (par. 65) and that he ex art. 49, third paragraph, ALL has (voluntarily) submitted the returns in question to the Tax Authorities (par. 94, 96 and 110). Under par. 59 of her plea on appeal, the counsel explicitly states:

66. If the Hoge Raad follows my position, the plea does not need to be discussed. If the Supreme Court thinks otherwise, the following applies.

Indictment and declaration of proof

67. The accused has been charged under 2 that:

“He in or about the period from July 1, 2009 to August 15, 2016 in the Netherlands Antilles and / or Sint Maarten, repeatedly, whether intentionally or unintentionally,

if the person, pursuant to the General National Ordinance on Land Taxes, was obliged to submit a Turnover Tax return within a set period, and did not do so within the set period and / or incorrectly and / or incompletely,

after all, he has always, intentionally or unintentionally, on a monthly basis, failed to submit a tax return for the company [A] within the set period (for the periods in 2009, 2010, 2011, 2012, 2013, 2014, 2015 and / or 2016 ) to do,

while the consequence of this could be that disadvantage could arise for the Netherlands Antilles and / or for one of the island territories and / or for Sint Maarten. ”

68. Following the example of the General Court, the Court of Justice has declared proven under 2 against the accused (I repeat it here for the sake of readability) that:

“During the period from July 1, 2009 to August 15, 2016 in the Netherlands Antilles and / or Sint Maarten, he repeatedly deliberately,

if the person who, pursuant to the General National Ordinance on Land Taxes, was obliged to file a Turnover Tax return within a set period, but did not do so within the set period,

after all, he has deliberately, on a monthly basis, failed to submit a tax return for the company within the set term [A] for the periods in 2009, 2010, 2012, 2013, 2014, 2015 and 2016),

while the consequence of this could be that disadvantage could arise for the Netherlands Antilles and / or for one of the island territories and / or for Sint Maarten. ”

Legal framework

69. Indictment and declaration of proven evidence are – also in view of the heading “Qualification and punishability of the facts declared proven” in the judgment of the General Court confirmed by the Court of Justice (page 16) – tailored to art. 49 first paragraph, preamble and under a and the second paragraph (j ° art. 8, second paragraph) ALL StM. The first and second paragraphs of art. 49 ALL NA and art. 49 I have already reproduced ALL StM in marginal 10 and marginal 11, respectively. 36 Art. 49 StM I will quote again, insofar as relevant here:

“1. A prison sentence of up to six months or a fine of the fourth category […], if the act or omission could result in damage to Sint Maarten, will be punished by the person who is obliged by virtue of this national ordinance to:

a. submitting a declaration within a set period, which does not do within the set period […]

[…];

2. Anyone who is deliberately guilty of an offense as described in the first paragraph shall be punished with imprisonment not exceeding four years or a fine of the fifth category […].

70. Art. 49 ALL StM essentially corresponds to art. 69 AWR (see also marginal 12), which reads, where relevant here:

“1. Anyone who deliberately fails to submit a tax return […] within the prescribed period […], if the offense is to impose too little tax, will be punished with imprisonment not exceeding four years or a fine of the fourth category or, if this amount is higher, at most once the amount of the under-levied tax.

2. Anyone who intentionally submits an incorrect or incomplete tax return, or commits the offense described in Article 68, first paragraph, under c, will be punished with imprisonment if the offense is to impose too little tax. of no more than six years or a fine of the fifth category or, if this amount is higher, no more than once the amount of the under-levied tax, on the understanding that insofar as the inaccuracy in or incompleteness of the tax return relates to taxable income as referred to in Article 5.1 of the Income Tax Act 2001, the fine may not exceed three times the amount of the tax that has been under-levied. “

71. The complaint is based on two judgments delivered in 2020, namely HR 28 January 2020, ECLI: NL: HR: 2020: 121, NJ 2020/157, in particular. De Bont and HR September 15, 2020, ECLI: NL: HR: 2020: 1372. In these judgments, according to the submitter of the plea, the Supreme Court considered that (in short) art. 69 AWR is only addressed to those who incorrectly or incompletely submit a “tax return”, so that the person obliged to file the return must be regarded as the perpetrator of the incorrect or incomplete submission of a tax return. . As stated, according to the author of the plea, this is a quality offense.

72. In its judgment of 28 January 2020, ECLI, NL: HR: 2020: 121, NJ 2020/157, m.nt. De Bont (which consideration has been repeated in HR 15 September 2020: ECLI: NL: HR: 2020: 1372):

“2.4.1 Art. 69, second paragraph, AWR is addressed to those who submit an incorrect or incomplete return ‘provided for by the tax law’. The perpetrator of the incorrect or incomplete filing of a declaration provided for by the tax law must therefore be regarded as the person who is obliged to file the declaration (cf. a case in which this declaration obligation rested on a company and therefore not on the person acting on behalf of the company had actually made the declaration: HR 17 October 2006, ECLI: NL: HR: 2006: AU8286, legal ground 3.3). This obligation to file a declaration can be established with anyone who has been invited to file a declaration as provided for in art. 8, first paragraph, AWR.

The circumstance that the in art. 8, subsection 1, AWR had not (yet) been received, does not in itself preclude the assessment that it concerns a ‘tax return provided for by the tax law’ within the meaning of art. 69, second paragraph, AWR (cf. HR July 5, 2011, ECLI: NL: HR: 2011: BP3746, legal ground 2.3 and HR July 12, 2011, ECLI: NL: HR: 2011: BQ3673, legal ground 4.2).

2.4.2 Partly in view of the above-mentioned parliamentary history of the now in art. 69, second paragraph, AWR, a data carrier submitted as a tax return can only be regarded as a ‘tax return’ if that tax return has been made by the person to whose tax or payment obligation that tax return relates, or by the party of the art. 42 to 44 AWR can act as the representative of the tax or payable person. “

Subsidiary discussion of the third plea

73. With reference to these two judgments from 2020, the plea is apparently based on the view that the present case (also) concerns a quality offense. The following comment can be made in this regard.

74. In both judgments, the Supreme Court explicitly addresses the incorrect or incomplete filing of a tax return as referred to in art. 69, second paragraph, AWR, with which, as stated, art. 49 ALL can be compared. With regard to this second paragraph, the Supreme Court considers that the perpetrator of the incorrect or incomplete filing of a tax return provided for by the tax law must be regarded as the person who is obliged to file the tax return and that the invitation to file a tax return as foreseen in art. 8, first paragraph, AWR is not a requirement to be able to rule that a ‘declaration provided for by law’ has been intentionally made incorrectly, in the sense that the circumstance that the invitation to file a declaration had not (yet) been received,

75. In his note to the judgment of 28 January 2020, De Bont notes that the “real discussion about the question whether there is a (implicit) quality offense, concerns the offense of deliberately incorrect or incomplete reporting in the second paragraph of article 69 AWR ”(emphasis mine, EH). The proponent of the plea seems to ignore this.

76. The first paragraphof art. 69 AWR independently makes it punishable (inter alia) by deliberately not filing a tax return within the prescribed period. Just like the second paragraph of art. 69 AWR mentions the first paragraph of “return provided for by the tax law”. In its analysis of the case law of the Supreme Court with regard to the second paragraph and the first paragraph respectively of art. 69 AWR points out De Bont that these words are indeed identical, but that the meaning with regard to the obligation to make a declaration is “diametrically” different: “The first paragraph of Article 69 AWR refers to deliberately not (timely) doing of declaration. The Supreme Court (23 December 2003, ECLI: NL: HR: 2003: AL6161, BNB 2004/180) considered in the context of this offense that if the Court “has considered that such an invitation is not required in this matter,

77. I believe, however, that the question whether it concerns an (implicit or explicit) criminal offense and (in short) whether there is an obligation to ‘report the crime even without an invitation’, as referred to in the plea, in the present case is irrelevant and cannot be further discussed.

78. The starting point is that art. 49 ALL is aimed at the person liable for reporting. In the offense descriptions of art. 49, first paragraph and second paragraph, ALL, the components “a return provided for by the tax law” do not occur; this refers to “the person who is obliged by virtue of this national ordinance” to file a (timely) declaration. The suspect in the present case can be regarded as such, so that he falls within the scope of that criminal provision. After all, according to evidence 1, the accused set up a one-man business under the name [A], which is registered as such in the Commercial Register of the St. Maarten Chamber of Commerce & Industry. It concerns sole ownership, of which the accused is the Statutory Director and Managing Director. In Exhibit 4,37it states the dates on which the monthly returns of the tax on company turnover were received for [A], and the months and years to which they refer. It should be noted again that at the hearings of the Court the defense has not disputed that the suspect was the person who was obliged under the ALL to file a tax return on time and that it is the suspect who was the taxable person in this regard. In addition, the Court of Appeal has established in its judgment (sheets 3 and 4) that it appears from the documents submitted by the defense that the returns for the tax on business turnover a. For the years 2010 to 2016 inclusive on 19 December 2017 and b. for the year 2009 were submitted in February 2018, and furthermore that the suspect was not submitted until a considerable time later, namely from 19 December 2017 and therefore wrongly not in time,

79. The plea fails.

VI. The fourth plea (failure to report within the set term)

80. The fourth ground of appeal, viewed in conjunction with the explanatory memorandum, complains that the declaration of evidence of the facts charged under 1 and 2, in particular insofar as they imply that the accused (each time) ‘did not make the reports within the prescribed period’ , is insufficiently reasoned, nor can it be deduced from the evidence what the time limit for making declarations was, or whether reminders / reminders were first issued after the expiry of that period, as the ALL prescribes.

81. I would like to point out once again that the proven fact under 1 relates to the failure to file an income tax return within the set period and the proven fact under 2 relates to the failure to declare tax on the company turnover within the prescribed period. For the proven statements I refer to marginal 4.

82. In support of the complaint, the submitter of the plea argues that (i) it follows from the system of the ALL that it is up to the inspector to first set a term and then remind the taxpayer of this term or to and possibly grant a postponement, (ii) the statement of the accused is that he was never requested to report and (iii) with regard to the years 2009 to 2013, it cannot be established when the relevant tax forms would have been issued to the suspect and with regard to the other years in means of evidence 5 it is only stated that the tax forms for the previous year were issued on 1 April of the following year.The submitter of the plea refers to the statement that the suspect made to the Court, stating that the Tax Authorities never asked him to file a tax return and that the counsel argued on appeal that 80% of the taxpayers in Sint Maarten submits a tax return too late and that this practice is accepted by the Tax Authorities in Sint Maarten and that in any case the tax return for 2016 – due to the grace period – has been submitted on time.meaning that the Tax Authorities have never asked him to file a tax return and that the counsel argued on appeal that 80% of the taxpayers in Sint Maarten submit their tax returns too late and that this practice is accepted by the Tax Authorities in Sint Maarten and that in any case the tax return for 2016 – due to the grace period – was submitted on time.meaning that the Tax Authorities have never asked him to file a tax return and that the counsel argued on appeal that 80% of the taxpayers in Sint Maarten submit their tax returns too late and that this practice is accepted by the Tax Authorities in Sint Maarten and that in any case the tax return for 2016 – due to the grace period – was submitted on time.

Defense defense

83. The defense such as that, insofar as relevant here, was put forward by the defense counsel, both on appeal and at first instance, concerns only the 2016 tax year and, moreover, is focused on the tax on company turnover (count 2). In the first instance, it was argued that the government granted a ‘grace period’ to the society of Sint Maarten with regard to the 2016 tax year due to the disastrous consequences of hurricane ‘Irma’ in September 2017, in which the period for filing returns to the The tax authorities were extended in the sense that (in short) the tax year 2016 was only due in January 2018.

Evidence and considerations Court

84. I have included the evidence used in paragraph 6 above. For the sake of readability, I repeat here the fourth, fifth and eighth evidence:

“4. The first monthly returns of the Tax on Company Turnover for [A] were received by the Tax Authorities on December 19, 2017. At that time, returns were filed for all months from 2010 to 2016. Subsequently, on February 2, 2018, the returns for the months of October to December 2009 were received, on February 5, 2018, the returns for the months of July and August 2009. and on February 6, 2018, the returns for the months of January to June 2009 and the month of September 2009.

5. In addition, with regard to the charged period, the accused only prepared income tax returns on 15 December 2016; these tax returns received by the tax authorities on 19 December 2017 38 relate to the years 2010 to 2013.

Subsequently, on December 19, 2017, the returns for the years 2014 and 2015 were received, on February 5, 2018, the return for the year 2009 and on February 6, 2018, the return for the year 2016. For the years 2009 to 2013, it does not appear explicitly when the related tax return forms have been issued. The tax forms relating to the years 2014, 2015 and 2016 were issued on April 1, 2015, April 1, 2016 and April 1, 2017 respectively.

8. During his third interrogation as a suspect, when asked, the suspect stated, among other things, the following:

“[…]

[Reporting agent:]: Under point 8. of the contract it is stated: ‘For audit Purpose please also inform Harbor on completion of works and followup of that for Phase 2 all taxes must be up to par and proven’. It says here that all taxes must be paid. You have not.

[Suspect:] At that time I had not yet submitted my tax returns and therefore did not show the Haven that I had paid my taxes. Only after I (the General Court: on 26 September 2016) became a Member of Parliament, I asked [person 2] to put my tax papers in order.

85. The defense of the counsel in question was rejected by the Court of First Instance. By confirming the judgment of the General Court also to that extent, the Court of Justice rejected that defense on the same grounds as the General Court. The considerations include the following, as relevant here:

” Evidence Considerations

In a subsidiary sense, the counsel has argued that the accused should be acquitted of the entire charge. To this end, it has argued that […], (ii) due to the disastrous consequences of Hurricane Irma, the government has granted a grace period until January 2018, […].

The General Court finds as follows.

[…]

(ii). The counsel’s second argument is not valid either. When consulting public sources, including the website of the government of Sint Maarten, the General Court did not come across such a generous ‘grace period’. As far as the Court has been able to ascertain, deferment has only been granted for the filing of monthly returns, such as those of the Tax on Company Turnover, insofar as they relate to the months of August, September, October and November of the year 2017. For those months has been postponed until January 15, 2018.

This also seems logical to the General Court, taking into account that hurricane Irma hit Sint Maarten on 6 September 2017, the deadlines for the monthly returns of the Tax on Company Turnover in 2016 had already expired at that time (such a declaration must must be submitted no later than the 15th day of the following month) and also the deadline for the Income Tax return had already expired (the tax return form for 2016 was issued on April 1, 2017 and, according to the heading on that note, had expired within five months afterwards, so no later than 1 September 2017, which is a generous period in itself, given the legal period of two months). ”

Legal framework 39

86. I would like to make the following remarks as an introduction. In tax law, a distinction is made between levy by way of assessment and levy by way of tax return. This distinction does not only apply in the Netherlands, but also in the former Netherlands Antilles and subsequently in Sint Maarten. 40 Art. 7 ALL NA and art. 7 ALL StM contains provisions which – in short – to do (declaration) of assessment tax in eight tired (s) taken. The amount due is determined by the inspector in the form of an ‘assessment’. The income tax as referred to in the charged and proven fact 1 falls into the category of assessment tax. 41 Upon declarationtax, the tax return forms the basis for the tax liability and the tax is levied by paying the tax stated on that tax return. The taxpayer is then responsible for filling in the correct return amount and charging the correct amount of tax, and for the payment to be made periodically (by period) or incidentally (by time). 42 Further rules on this can be found in art. 8 ALL NA and art. 8 ALL StM. The tax on company turnover referred to in charge 2 is an example of tax return.

87. It makes sense to me to list the relevant articles of law below. With the exception of art. 12, first paragraph, of the National ordinance tax on business turnover of the Netherlands Antilles (old) I limit myself to the national ordinances of Sint Maarten, since the (related) articles from the former national ordinances of the Netherlands Antilles (except for a single detail ) 43 are identical in content. This concerns the following provisions:

Art. 7, paragraph 1 and 2 ALL :

“1. With regard to taxes levied by means of an assessment, the tax return form must be submitted to the Inspector within a period set by the Inspector of at least two months after the form has been issued.

2. After expiry of the period referred to in the first paragraph, the Inspector gives the taxpayer notice to submit a return within a period of at least five working days to be set by him, unless an extension has been granted for filing the tax return in accordance with Article 9. ”

Art. 8, paragraphs 1 and 2, ALL :

“1. With regard to tax that must be paid or paid on a tax return, the tax return must be submitted to the Inspector.

2. If the declaration relates to a period, it shall be made within a period of 15 days after the end of that period. If the return relates to a point in time, it must be made within a period of 15 days after the point in time at which the tax debt arose.

3. A taxpayer or withholding agent to whom a tax return has not already been issued, is obliged to request the Inspector to issue a tax return before the time at which the tax must be paid. ”

Art. 9, paragraph 1, ALL :

“1. The Inspector may, under conditions to be set by him, postpone the submission of the tax return form and may impose conditions in this respect. Postponement is no longer granted until 18 months after the date on which the tax liability arose.

2. If a postponement has been granted for filing a declaration, any period related to the declaration or the imposition of an assessment will be extended to the duration of the postponement.

[…] ”

Art. 18, paragraphs 1 and 2, ALL :

“1. If the taxpayer has not submitted the declaration for a tax which is levied by means of assessment, or has not submitted it within the period specified in Article 7, second paragraph, this constitutes a default in respect of which the Inspector, simultaneously with the determination of the assessment can impose a fine of no more than ANG 2,500.

2. If the taxpayer or the withholding agent does not submit the return for a tax that must be paid or paid on the return, or not within the time limit pursuant to art. 8, second paragraph, this constitutes a default in respect of which the Inspector can impose a fine of NAf 2,500 on him simultaneously with the determination of the assessment.

[…] ”

Art. 27 National Ordinance on Income Tax (LIB):

“The tax year is the calendar year”

Art. 28 LIB :

“The tax is levied by assessment.”

Art. 12, first paragraph, National Ordinance Tax on Business Turnover 1997 Netherlands Antilles :

“1. The tax due in a period must be paid on a return. “

Art. 12, first paragraph, National Ordinance Tax on Business Turnover Sint Maarten (BBO):

“1. The tax due in a period of a calendar month must be filed on a tax return. “

Discussion of the fourth plea

88. It is true that the accused stated at the hearing of the Court on 14 February 2020 that the tax authorities never asked him to file a tax return. However, the submitter of the plea ignores the fact that the accused also stated at the time: “I knew that I had tax obligations, but I was behind”, “I knew that there were tax obligations for my companies and myself” and “It is my fault that I was too late with that. […]. It’s a bad habit of mine ”. If the chairman tells the suspect that it follows from the file that no tax return has been filed with the tax authorities for several years, the suspect replies: “Yes, that’s right”.

89. In so far as the ground of appeal relates to what the defense on appeal has put forward with regard to the 2016 tax year and the judgment of the Court of Justice thereon, I consider that the grounds referred to by the Court of First Instance and adopted by the Court of Justice be able to bear the rejection of the defense of the defense without further ado. This complaint is therefore ineffective.

90. To the extent that it is still argued in the explanation to the plea regarding the 2016 tax year that it cannot be established when the tax return form was issued to the suspect, this is based on an incorrect reading of the contested judgment. After all, the Court of Justice confirmed from the judgment of the General Court the consideration that the tax return form for 2016 was issued on 1 April 2017 and that, according to the heading on that bill, the tax return should have been made within five months thereafter, i.e. by 1 September 2017 at the latest. and that, given the legal deadline of two months, this was a generous deadline in itself.

91. If and insofar as the plea with regard to facts 1 and 2 is intended to complain that the proven phrase “not filing a tax return within the set period” is insufficiently reasoned and the plea also pertains to the tax years 2009 , 2010, 2012, 2013, 2014, 2015, in my opinion, it lacks factual basis. Obviously, the applicable legal framework does not require evidence and from the means of evidence four, five and eight, seen in conjunction with the footnotes contained therein and the relevant evidence of the Court, it can be inferred in the light of that legal framework that has been to file an income tax return or a tax return on company turnover for the stated tax years within the specified period.

92. For the rest, I note that the substantiation of the plea as indicated above in paragraph 82 by (i), (ii) and (iii) consists of new arguments. These arguments have not been put forward by the defense before the Court. Because they are so closely intertwined with valuations of a factual nature and therefore require an investigation of a factual nature, they cannot be reviewed in cassation. It seems to me that the remedy does not require discussion to that extent.

93. Nevertheless, I would like to say something about it – superfluously. Insofar as the submitter of the plea with reference to Articles 7 and 8 ALL argues (ad i) that it would follow from the legal system that – before the conclusion can be drawn that a (timely) declaration has not been filed and that it is possible to speak of the completed offense as referred to in art. 49 ALL – “must first be reminded of the obligation to report and then reminded to do so, while there is also a possibility of postponement”, this is based on an incorrect interpretation of the scope of the ALL and a requirement is made that this or another national ordinance of Sint Maarten. I explain that below.

94. Pursuant to art. 7, paragraph 1, ALL, the declaration for an assessment tax, such as income tax, must be made within a period of at least two months set by the inspector. Pursuant to art. 9, paragraph 1, ALL, the inspector can extend the term, under certain conditions. If a tax return is not filed or is not filed on time, the inspector can subsequently take action against this by informing the taxpayer pursuant to art. 18, paragraph 1, ALL to impose a default fine. It is this (fiscal-administrative) default penalty that can only be imposed after the taxpayer on the basis of art. 7, second paragraph, ALL has been reminded to file a declaration. 44 However, the present case is not concerned with a settlement by the imposition of a default fine.45 A criminal procedure has been chosen. Other than art. 18 ALL has art. 49 ALL does not require the taxpayer to be issued with a reminder after the return period has expired before prosecution can be initiated. 46

95. For the declaration tax, such as the tax on company turnover (art. 12 BBO), 47applies that by virtue of the first and second paragraphs of art. 8 ALL the declaration must be made to the inspector and that if the declaration relates to a period or time, it must be made within a period of fifteen days after the end of that period or point in time. Not making this declaration (on time) can also be done by the inspector on the basis of art. 18, second paragraph, ALL are sanctioned with the imposition of a default penalty. As an aside, I note that in this case the default fine can be imposed without first being preceded by a reminder; nor art. 18 ALL nor art. 49 ALL makes such a requirement. Here too, however, the finding that this fiscal path has not been taken in the present case is of more importance.

96. The Court of First Instance also considered – a consideration also confirmed by the Court of Justice – that deferment was granted only for the submission of monthly returns, such as those relating to turnover tax, in so far as they related to August, September, October and November of the year 2017, and until 15 January 2018. That was also logical to the General Court because hurricane ‘Irma’ hit Sint Maarten on November 6, 2017 and the deadlines for the monthly declarations of the tax on company turnover had already passed by that time in 2016; such declarations had to be “finally submitted no later than the 15th day of the following month”. I consider that judgment by no means incomprehensible and sufficiently motivated. It is true that evidence shows four 48not when a tax return form has been issued to the suspect with regard to filing a tax return on the company turnover for the year 2016. From this evidence it can only be concluded that the first monthly returns for, among other things, that year were received by the Tax Authorities on 19 December 2017 (at that time, returns had been filed for all months from 2010 to 2016). From art. 8, subsection 1, ALL, it appears that for the tax return the tax return must be submitted to the Inspector. If the declaration in question relates to a period, as in the present case, it must be made within a period of 15 days after the end of that period (Article 8, second paragraph, ALL). Other than in the first paragraph of art. 7 ALL (regarding the assessment tax) is prescribed, stipulates art. 8 ALL does not require the tax return form to be submitted to the Inspector within a period set by the inspector of at least two months after the form has been issued.49 A taxpayer in Sint Maarten to whom a tax return form has not already been issued, is based on art. 8, third paragraph, ALL is obliged to request the inspector to issue a tax return before the expiry of the payment term. According to the documents, this was not done by the accused, although he himself stated at the Court hearing of 14 February 2020 that he knew that his company had payment obligations.

97. The plea fails in all its parts.

VII. The fifth plea (grounds for punishment)

98. The fifth plea alleges that the grounds for the penalty imposed on the accused are incomprehensible.

This while the proven conduct had been completed before the suspect stood for election and was a member of parliament and, moreover, it follows from the official report of the hearing on appeal that the suspect did indeed provide insight into his actions and expressed regret. The submitter of the plea points out that, in accordance with its pleading note (paragraphs 111 to 123), the defense argued against the imposition of an unconditional prison sentence and argued that – contrary to what the Court of First Instance considered – the accused has indeed disclosed matters in his statements, and that no consideration should be given to the fact that the accused was a member of parliament.

Defendant’s statement and defense defense

100. According to the official report drawn up thereof, the accused stated at the hearing of the Court of 14 February 2020, in so far as relevant here:

“I have indeed stated to the police that I will not run away from my responsibilities.

At one point I engaged an accountant [involved person 2] to put things in order. That was about my tax liabilities. That had nothing to do with the fact that I had recently become a Member of Parliament. I did that because it was the time for that. I knew I had tax liabilities, but I was behind.

[…]

You, chairman, ask me why it has not been reported to the tax authorities. I answer that I have already stated as a witness to the police that I did not. It’s my fault I was late with that. I had the same problem with my other company. It’s a bad habit of mine. You, chairman, tell me that it follows from the file that no tax return has been submitted to the tax authorities for several years. Yes that’s right.

[…]

You, Attorney General, ask me why I did start filing tax returns at some point. I answer that I have bad habits, but better late than never. I don’t run from my responsibilities.

[…]

I was heard as a witness by the officers of the Anti-Undermining Team. We had an open discussion about my taxes. I was advised to sort out my tax affairs. You, the oldest judge, ask me whether I would like to answer the question why I did start filing tax returns at a certain point or whether I make use of my right to remain silent. I answer that I wanted to comply with the law. ”

101. The defense referred to by the submitter of the plea implies, in so far as relevant here and without the footnotes, the following:

“ Punishments to be imposed

[…]

119. In view of the documents in the final file, it is evident that [accused] made statements – including statements regarding the suspicion of forgery – and thereby disclosed matters. In order to subsequently have to hear at a hearing that he is no longer suspected of the aforementioned criminal offense, but only after he has been asked to answer several times with regard to the tax case not only works misleading, but also leads to bribery. After all, with the sudden announcement at the hearing by the Public Prosecution Service that [suspect] will no longer be prosecuted for forgery, it is automatically assumed by the Public Prosecution Service and the GEA that [suspect] will declare with regard to the forgery suspicion affecting others. In doing so, completely setting aside the right to a fair trial by [suspect] in such a way adopting an – almost forced – legal attitude, which is concluded from the very one-sided image of [suspect] created by the Public Prosecution Service, and unjustly taken over by the Public Prosecution Service. GEA. The GEA does not consider that invoking [suspect] ‘s right to remain silent is understandable under the circumstances, and is warranted, but has come to the conclusion that punishment is warranted for this attitude.

[…]

120. The GEA then takes into account the social function that [suspect] holds. The fact that [suspect] acted as a parliamentarian during part of the charged fiscal years does not detract from the aforementioned position of the defense. After all, [suspect] has – contrary to what the GEA believes – accounted for by making statements to the investigation team. These statements are in the file and have been cited by the GEA itself in its judgment to substantiate its considerations. It is thus established that [suspect] cooperated in the investigation and took an open attitude during the investigation; he has not deviated from that and has remained consistent in this. The mere fact that [accused] invoked his right to remain silent during the hearing in first instance has nothing to do with ‘running away from his responsibilities’. On the contrary, for [suspect] to exercise his right to remain silent lies in the circumstance that his statements contain all information of which he is aware and of which he is aware. He has already accounted for this and it is not seen why [suspect]as a suspect may not yet invoke his right to remain silent. ”

Criminal motivation

102. The grounds for punishment in the judgment of the Court are:

“ Imposition of penalties

When determining the punishments to be imposed, the nature and seriousness of what has been declared proven, the circumstances under which the proven facts was committed, the extent to which the conduct can be blamed on the suspect and the person of the the suspect, as this emerged during the investigation in court. In doing so, the seriousness of the proven facts is taken into account in relation to other criminal offenses, as expressed, among other things, in the statutory maximum sentences imposed on this and in the penalties imposed for similar offenses.

The suspect has been guilty of tax evasion for seven years by not filing a tax return on time. This could cause considerable disadvantage for Sint Maarten. The suspect has thus put his own financial advantage above the general interest of proper taxation of Sint Maarten and thus the society of Sint Maarten.

The criminalization of tax evasion protects not only the community interests served by taxation, but also the interests of honest taxpayers. After all, tax evasion can lead to a further increase in the tax burden for the residents of Sint Maarten. In addition, this behavior of the accused can lead to a deterioration of tax morality and to feelings of injustice in those who do meet their tax obligations. Infringement of tax morality can lead to more people not meeting their tax obligations and / or to more control (financed by tax money) being necessary.

The Court attaches great importance to the accused that during the period when he stood for election as a member of parliament and during the period that he was actually a member of parliament, on the one hand as a representative of the residents of Sint Maarten he fulfilled an exemplary role in society and (briefly) parliamentarian received a substantial income from the community treasury and, on the other hand, did not care to seriously disadvantage the same society and the same community treasury. Although the accused stated at the trial that he did not want to run away from his responsibilities, he did not provide any insight into his actions, let alone convincingly expressed regret until his appeal.

The Court also takes into account, to the detriment of the accused, that this involves a considerable amount of loss, namely an amount of more than NAf 890,000.

In the opinion of the Court, in view of the seriousness of the proven evidence, a different or lighter sanction than a punishment involving unconditional deprivation of liberty is not sufficient. In order to prevent the suspect from repeating itself, the Court will impose part of the prison sentence on a conditional basis. In order to emphasize the seriousness of what has been declared proven, the Court will also impose the maximum community service sentence on the suspect.

The foregoing concludes that the Court considers it appropriate and imperative to impose on the suspect a prison sentence of 18 months, of which 12 months conditional with a probationary period of 3 years, in combination with a community service sentence for the duration of 240 hours (alternatively 120 days in replacement detention).

Now that the law does not offer the possibility to deprive the suspect of the right to stand as a candidate for the proven facts, the Court is ignoring this additional punishment demanded by the Attorney General. ”

Discussion of the fifth plea

103. First of all, I propose that the judge of fact is free in the choice of the punishment and in the assessment of the factors that he considers important for this purpose. This assessment is reserved for the judge of fact and in principle this judgment does not need to be motivated in this respect. As long as the judge of fact remains within the limits set by law on the punishment and measure, the sentencing in cassation is virtually untouchable. A limit that the judge of fact must observe in this regard is that when selecting the data that he wishes to use in determining the sentencing, these must have been shown during the investigation in court. This means that the judge may take into account everything that has been stated in court or that has been submitted in the case documents. The judge may also pay attention to matters such as the defendant’s attitude to the proceedings, the information related to the person of the suspect, the moral reproach and factors related to the seriousness of the offense, such as the effect that has occurred. However, such observations must be understandable.50

104. In so far as the submitter of the plea argues that the counsel has put forward on appeal that the fact that the accused was a member of parliament should not be taken into account, this is based on an incorrect reading of the pleading note. More than the fact that the General Court ‘took into account that the suspect holds a social function’ and that the suspect ‘acted as a parliamentarian during part of the charged years’ is in this connection by the counsel in her pleading note, and (orally) in addition, not argued.

105. This immediately brings me to part of the complaint (1) that the court would have disregarded that the proven facts and the prejudice to the treasury as suggested by the court took place before the accused stood for election as a Member of Parliament and before he was a Member of Parliament. According to the proponent of the plea, there would be no (temporal) connection between the exemplary function that the suspect had and the income that he enjoyed as a parliamentarian on the one hand and the proven facts or the disadvantage of the community treasury on the other.

106. What exactly would be wrong with the motivation on this part, escapes me. Evidence 8 shows that the suspect became (or had become) a Member of Parliament on 26 September 2016. The view that the proven facts had already been completed beforehand is based on an incorrect reading of the judgment under appeal. After all, it has been proven under count 1 that the suspect was guilty of not filing an income tax return within the set period in the period from 1 January 2010 to 31 December 2017. The substantial income referred to by the Court was thus enjoyed by the accused for more than a year during that period that was charged and declared proven. Incidentally, the defense has not disputed this. On the contrary,

107. The consideration of the Court of Appeal that it heavily blames the accused for fulfilling an exemplary role in society during the period when he stood for election as a member of parliament and during the period that he was actually a member of parliament, on the one hand as a representative of the residents of Sint Maarten. and (briefly) if a parliamentarian received a substantial income from the community treasury and, on the other hand, did not care about seriously disadvantaging the same society and the same community treasury, is therefore by no means incomprehensible. The addition of the author of the plea that the suspect shortly after taking office as a parliamentarian “made a clean sweep,” does not that different (quite apart from having to ‘come clean tomaking ‘might be more appropriate here); After all, the first income tax returns were only received by the tax authorities on 19 December 2017 (documentary evidence 5).

108. Also – ad (ii) – the grounds for punishment would be incomprehensible because of the consideration of the Court that the accused “has not given any insight into his actions up to and including his appeal, let alone that he has convincingly regret. demonstrated ”.

109. The submitter of the plea argues in this regard that the accused, with his statement made on appeal, but also with the statement of the accused, used as evidence 8 (which implies that he had not yet submitted his tax returns and after taking office as Member of Parliament had asked the accountant to put his tax papers in order), did provide insight into his actions, while the suspect also indicated that he had had a bad habit and that he wanted to settle ‘better late than never’ in order to meet the comply with the law. In this regard, the submitter of the plea refers to the case that led to the judgment of the Supreme Court of 17 January 2006, ECLI: NL: HR: 2006: AU3447, NJ2006/303 m.nt. Buruma and to the relatively recent conclusion of my colleague Cologne before HR October 27, 2020, ECLI: NL: HR: 2020: 786.

110. First of all, I refer to what I suggested in marginal 103. Furthermore, I cannot infer from the minutes of the hearing of the Court or from evidence 8 that the accused stated that he regretted his actions and recognized the reprehensible nature thereof. In addition, the court held that the accused was unconvincingwise regret. That judgment is not incomprehensible, in which I also take into account that the accused answered essential questions at the trial ‘that he cannot remember all kinds of things’, ‘that he is bad at remembering dates and amounts’ , “that he no longer knows exactly”, “that he cannot remember withdrawing $ 1.1 million in cash” (!), or appeals to his right to remain silent. The suspect is of course free to give those answers and to invoke his right to remain silent, but it goes a bit far to distil an expression of regret from it, and this is not any different because the suspect has also stated that he does not want to run away from it. his responsibilities and willing to comply with the law.NJ 2006/303, m.nt. Buruma and with the Opinion of Advocate General Cologne prior to HR 27 October 2020, ECLI: NL: HR: 2020: 786 limp. The motivation for the punishment is therefore also not incomprehensible with regard to this part.

111. The plea fails in both parts.

VIII. In conclusion

112. All means fail. It seems to me that at least the second, fourth and fifth pleas can be dismissed with the provisions of art. 81, first paragraph, RO reasoning.

113. I have not found any grounds on which the Supreme Court should make use of its power to set aside the contested decision of its own motion.

114. This claim is for the action to be dismissed.

The Attorney General

at the Supreme Court of the Netherlands

AG

1The words “on December 19, 2017” were added by the Court in Exhibit 5. The Court also added in the last line of footnote 12, not reproduced here: “documents L, M, N and O”.

2General national ordinance land taxes is the official title specified in the national ordinance.

3I, AG, Understand HR March 30, 2010, ECLI: NL: HR: 2010: BK6922, NJ 2010/199.

4I, AG, Understand HR May 22, 2001, ECLI: NL: HR: 2001: AB1760, NJ 2001/699.

5For these considerations see paragraph 8.

6See also: P. Kavelaars, J. Adeler, D. Beeks and J. Lopez Ramirez, The tax system in the Caribbean Kingdom , The Hague: Sdu Publishers 2018 (in particular p. 536-537).

7Added after an amendment-Omzigt is – in short – that the right to prosecute does not lapse if the disclosure relates to income from a substantial interest or from savings and investments abroad, respectively.

8See my conclusion on this before HR 10 February 2015, ECLI: NL: HR: 2015: 267.

9She is not unique. For other examples see: art. 184 y ° art. 7, first paragraph and under a, WVW (driving after a collision) and, in general criminal law, art. 53-54 Criminal Code (printing press offenses), art. 54a Criminal Code (service providers) and art. 192d Sr (members of the States General, minister or state secretary).

10See further JM Sitsen, ‘Turning in: how does that actually work?’, FTV 2005/4.

11Parliamentary papers II 1954/55, 4080, no. 3 (Explanatory Memorandum), p. 28.

12Regarding art. 49, third paragraph, ALL StM, these are the Inspector, the Director of the Stichting Overheids Belasting Accountants Bureau, the Recipient and the officials or persons designated by them (art. 48, second paragraph, ALL). The Recipient is an independent administrative body within the government charged with the collection of taxes; see Kavelaars, Adeler, Beeks and Lopez Ramirez, aw, p. 501.

13WECA Valkenburg and JH van der Werff, Tax law and criminal procedure , sixth revised edition, Deventer: Kluwer 2019, p. 78.

14PJ Wattel, Tax law and criminal procedure , Tax study series no. 25, second revised edition, Deventer: FED BV 1989/1990, p. 156 and 157.

15See J. den Boer, RJ Koopman and PJ Wattel , Tax commentary , General tax law , Deventer: Kluwer 1999, p. 642.

16In subject study 01, General part , art. 69 AWR, no. 13.4 it is noted that in the judgment of 2 May 2001, BNB 2001/319, the tax chamber interprets the terminology ‘knows or should reasonably suspect’ in such a way that the taxpayer did not have to reasonably suspect that the inspector was aware of the inaccuracy or incompleteness from an objective point of view. or would become known, and that the case law of the criminal chamber of the Supreme Court (now) uses the same wording. See also my conclusion before HR 10 February 2015, ECLI: NL: HR: 2015: 267.

17Next to the criminal disclosure scheme is the tax disclosure scheme. In St. Maarten, the tax scheme is included in art. 26 ALL. This article is comparable to the Dutch tax voluntary disclosure scheme ‘van’ art. 67n AWR. Art. 26 ALL StM reads: “If a taxpayer or withholding agent still submits a correct and complete tax return or provides correct and complete information, data or instructions before he knows or should reasonably suspect that one or more officials of the Tax Authorities are aware of the inaccuracy or incompleteness. or will become known, a default fine of up to 15% will be imposed instead of an offense fine ”. See about art. 26 ALL (and art. 8 MBAB), the tax voluntary disclosure scheme, the offense fine and the default fine: Kavelaars, Adeler, Beeks and Lopez Ramirez, aw, p. 537.

18If this conclusion is related to the criminal voluntary disclosure scheme, it is very quickly drawn. If the reference is to the tax voluntary disclosure scheme, this is no different. According to Kavelaars, Adeler, Beeks and Lopez Ramirez, aw, p. 537, for an appeal to the (tax) voluntary disclosure scheme, it is “still required that the improvement must be made of your own accord and that there must be no knowledge of an upcoming book or specific sector inquiry”.

19Valkenburg and Van der Werff, aw, p. 70. In this sense also Vakstudie 01, General part , art. 69 AWR, no. 13.2.

20Cf. also HR September 18, 1990, ECLI: NL: HR: 1990: AD1308, NJ 1991/347.

21In 2001, the tax authorities and the public prosecution service jointly developed a policy regarding the disclosure of non-fiscally responsible foreign accounts. This accounts project was aimed at uncovering hidden foreign bank balances of Dutch residents. See also Valkenburg and Van der Werff, aw, p. 77 and 248.

22Cf. HR May 16, 2003, ECLI: NL: HR: 2003: AF8711.

23According to the official report of the hearing of the Court of Justice, the accused did not want to make a statement on that point, among other things.

24The consideration of the General Court, not adopted by the Court, reads: “The counsel can be admitted that the foregoing, strictly speaking, does not affect the fact that the official report on the tax offenses referred to must be sent to the Director (Article 55, second paragraph, first sentence ). The Public Prosecution Service has complied with this insofar as the report drawn up with regard to the suspect has been sent to the tax inspector [involved party 5] (Inspection and Investigation Department of the Tax Authorities Sint Maarten) and that this was reported in a letter dated 24 November 2017. with the person who must be regarded as the Director, namely the Head of the Tax Authorities Sint Maarten [person concerned 6]. Insofar as the Public Prosecution Service has not complied with the formulated obligation, the seriousness of this must be properly qualified. After all, the Director should have returned the official report immediately (Article 55, second paragraph, second sentence). It is not possible to see which legally respectable interests of the suspect could be served by this. The legislator has most likely not envisaged this meaningful exercise. The General Court deduces from the explanatory memorandum to the original regulation that with Article 55 the legislature mainly intended to regulate the investigation by tax officials, operating under the responsibility and direction of the Inspector and / or the Director. That situation is clearly not an issue here. ”

25The Court refers in a note to the National Ordinance containing general provisions of formal tax law (General National Ordinance Land Taxes), PB . 2001, no. 89 and cites the explanation of art. 55. For that quote, see marginal 49 below.

26In the same sense HR December 1, 2020, ECLI: NL: HR: 2020: 1890.

27See also HR December 8, 2020, ECLI: NL: HR: 2020: 1975.

28Cf. the above cited art. 413, fifth paragraph under c, Sv StM.

29See also HR December 8, 2020, ECLI: NL: HR: 2020: 1964 (legal ground 2.3).

30AJA van Dorst, Cassation in criminal cases , Wolters Kluwer: Deventer 2018, p. 183.

31States of the Netherlands Antilles, Session 2000-2001, 2446, no. 3.

32Valkenburg and Van der Werff, aw ., P. 170 and 171 speak in this context of a double opportunity test. According to them, the prosecution service is not dominus litis here.

33See also HR June 9, 1987, ECLI: NL: HR: AC0921, NJ 1988/583, m, nt. Van Veen.

34This is the Director of taxes, according to art. 2, second paragraph, under a, ALL StM.

35Cf. also the (Dutch) explanatory memorandum to art. 80 AWR: “An effective division of labor requires that the official reports be submitted to the government of the Government of Taxes. This applies not only to the most common case, where the official report was drawn up by an official of that service, but also if, in exceptional cases, the investigation was carried out by a civil servant, as referred to in Article 141 of the Code of Criminal Procedure ”( Parliamentary documents II 1954/55, 4080, no. 3, p. 27, in the same sense the former Dutch Decree of 3 May 1993, no. AFZ 93 / 133M). Art. 141 Sv Ned. designates who in the Netherlands is charged with investigating criminal offenses; these include the public prosecutor and police officers.

36Apparently the means only refers to Art. 49 ALL StM. That is what I will focus on in the future. Incidentally, my comments apply mutatis mutandis just as much as art. 49 ALL NA should be involved.

37This footnote means: “Documents not forming part of the aforementioned final file, namely the monthly returns Tax on Company Turnover (Tumover Tax), submitted by the defense on March 12, 2018, marked as documents BI to B.XII, C. III, C.IV, C.VI, C.VII, C.IX to C.XX, DI to D.XII, EI to E.XII, F.II, F.Ill, FV to and F.XXII, GI to G.XII, H.II to H.XVI and II to I.XII. It is noted that after the first series of returns, a number of corrected returns were received (on 3 January 2018, returns for the months of November 2012 and August 2015 and on 2 February 2018, returns for the months of June, August and September 2010, the months of May, June , July, August, September, October and December 2012 and again the month of August 2015).

38As stated (see footnote 1), the words “on December 19, 2017” have been added by the Court here.

39In particular, see also Kavelaars, Adeler, Beeks and Lopez Ramirez, aw, p. 423-425, p. 434-443 and (regarding formal tax law) p. 497 ff

40On this subject, see Kavelaars, Adeler, Beeks and Lopez Ramirez, aw, p. 505 ff and p. 557 ff

41ECG Okhuizen and LJA Pieterse (eds.), Main matters formal tax law , The Hague: Boom Juridisch 2020, p. 31.

42Kavelaars, Adeler, Beeks and Lopez Ramirez, aw, p. 513. See also Okhuizen and Pieterse, aw, p. 110.

43For example “15” instead of currently (written out) “fifteen”.

44See also HR December 15, 2016, ECLI: NL: HR: 2006: AZ4416, BNB 2007/112, m.nt. Van Leijenhorst. For more information on the tax-administrative default fine in Sint Maarten, see Kavelaars, Adeler, Beeks and Lopez Ramirez, aw, p. 531 (and on the offense fine, p. 533).

45If such a default fine had been imposed by the inspector in this case, the una via principle would have come into the picture. On this subject, see Kavelaars, Adeler, Beeks and Lopez Ramirez, aw, p. 535-536 and Okhuizen and Pieterse, aw, p. 477 ff.

46Also art. 69 AWR, with which art. 49 ALL has similarities (see marginal numbers 12 and 70), does not have this requirement. See Okhuizen and Pieterse, aw ., P. 471.

47The submitter of the plea refers in this regard to art. 12 LBB. That will be a mistake. The “National Ordinance on the Appeal in Tax Matters 1940” does not play a role in this case.

48The submitter of the plea apparently erroneously points to means of evidence five.

49Art. 8 ALL is to some extent comparable to art. 10 AWR. Art. 10, first paragraph, AWR says, however, that “with regard to taxes that must be paid or remitted on a tax return under the tax law, the tax return shall be made to the inspector or the recipient specified in the invitation to file a tax return”. . Pursuant to art. 10 AWR, the obligation to declare does not arise until after the taxpayer has been sent an invitation by the inspector to file a tax return; see further Okhuizen and Pieterse, aw ., p. 403.

50Van Dorst, aw, p. 264-265.

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