Rb. Zeeland-West-Brabant - AWB - 21 373, 21 4309, 21 4310
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| Rb. Zeeland-West-Brabant - AWB - 21 _ 373, 21 _ 4309, 21 _ 4310 | |
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| Court: | Rb. Zeeland-West-Brabant (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 5(1)(a) GDPR Article 6.17(1)(e) Wet IB |
| Decided: | 02.06.2022 |
| Published: | 07.06.2022 |
| Parties: | Belastingdienst |
| National Case Number/Name: | AWB - 21 _ 373, 21 _ 4309, 21 _ 4310 |
| European Case Law Identifier: | ECLI:NL:RBZWB:2022:2995 |
| Appeal from: | |
| Appeal to: | Not appealed |
| Original Language(s): | Dutch |
| Original Source: | Rechtspraak.nl (in Dutch) |
| Initial Contributor: | Giel Ritzen |
The Court stated that the mere fact that the data subject’s personal data was unlawfully processed in the FSV database, could not lead to a reduction or annulment of a re-assessment of his tax return because the Tax Authority inspector had not re-assessed his tax return because of an unlawful risk selection.
English Summary
Facts
This dispute is between a data subject and an inspector of the Dutch Tax Authority (the controller). The data subject has psychological problems and, after living in a special housing facility, lived alone since October 2015. His parents provided the care and assistance the data subject needed. For his tax return, the data subject took into account several deductions for specific care costs. According to the Tax Authority, however, these deductions were unlawful and issued corrections. After rejecting the data subject’s objection to these corrections, the case was brought to court.
In the proceedings, the data subject brought forward the suspicion that he had been the subject of ethnic profiling and that, as a result, the expenses for specific healthcare costs claimed as a deduction had been unjustly scrutinised for years. According to the data subject, this suspicion was confirmed by a letter from the Tax and Customs Administration dated 27 May 2021, in which it was stated that his data had been included in the Fraud Notification Facility (FSV) database and that the use of this facility did not comply with the GDPR.
Holding
The Court referred to a judgement of the Dutch Supreme Court of 10 December 2021 (ECLI:NL:HR:2021:1748), and stated that it follows from that judgement that the Tax Authority inspector can check a data subject’s tax returns of earlier years if he finds that the data subject has incorrectly deducted taxes in his tax return, even if this assessment leads to unlawful processing of personal data. According to the Court, this may only be different if this check results from a risk selection on the basis of a criterion which violates the taxpayer’s fundamental rights (such as the right to non-discrimination). However, the Court stated that it did not follow from the provided evidence that the data subject’s tax return had been re-assessed on such a criterion. The mere fact that the data subject’s personal data were unlawfully processed in the FSV database, could not lead to a reduction or annulment of the Tax Authority’s assessments.
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English Machine Translation of the Decision
The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.
COURT ZEELAND-WEST-BRABANT Tax law, single chamber Location: Breda Case numbers BRE 21/373, 21/4309 and 21/4310 judgment of June 2, 2022 Judgment as referred to in Section 8.2.6 of the General Administrative Law Act (Awb) in proceedings between [interested party] , residing at [residence] , stakeholder, and the tax inspector, the inspector. The contested rulings on objections † The decision of the inspector of 15 January 2021 on the objection of the interested party against the income tax and national insurance contributions (IB/PVV) assessment imposed on him for the year 2016 for a taxable income from work and home of € 14,868, as well as the tax interest charged € 179 (assessment number [assessment number].H.66.01). † The decision of the inspector of 31 August 2021 on the objection of the interested party against the IB/PVV assessment imposed on him for the year 2017 for a taxable income from work and home of € 15,136, as well as the tax interest of € charged by simultaneous decision. 13 (stroke number [stroke number].H.76.01). † The decision of the inspector of 10 September 2021 on the objection of the interested party against the IB/PVV assessment imposed on him for the year 2018 for a taxable income from work and home of € 15,403 [assessment number].H.86.01). seat The hearing took place on 12 May 2022 in Breda. There appeared and heard the representative of the interested party, [name] (the father of the interested party), and on behalf of the inspector, [Inspector]. 1 Decision The court dismissed the appeals as unfounded. 2 Grounds Facts 2.1. The person concerned was born on [date of birth]. From his 15th year until 26 October 2015, the interested party stayed in a protected form of residence due to psychological problems. The interested party has been living independently since 27 October 2015. The parents of the interested party provided care and guidance in the years 2016, 2017 and 2018. The claimant did not pay any compensation to his parents for this. The parents also did not issue dated invoices for the care and guidance provided. 2.2. In 2016, 2017 and 2018, the interested party received a Wajong benefit of €14,686 (2016), €15,136 (2017) and €15,403 (2018) respectively. 2.3. In the income tax/PVV returns for the years 2016, 2017 and 2018, the interested party has taken into account a deduction of a total of € 4,250 (2016), € 3,255 (2017), and € 3,655 (2018) respectively (amounts before application of the deduction threshold and before application of the statutory increase) for various expenses for specific healthcare costs, including an amount of € 3,255 each year for expenses incurred for extra home help. In addition, the interested party requested the young disabled person's discount. 2.4. When determining the IB/PVV assessments for the years 2016, 2017 and 2018, the inspector corrected the deduction of expenses for specific health care costs. However, the young handicapped discount has been taken into account. The objections made against the IB/PVV attacks for the years 2016, 2017 and 2018 have been declared unfounded. Dispute 2.5. It is in dispute whether the IB/PVV assessments for the years 2016, 2017 and 2018 have been determined to be too high. On behalf of the interested party, it was stated at the hearing that the dispute will be limited or an amount of € 3,255 can be deducted as expenses incurred for extra home help. Expenses for extra family help 2.6. The court states first and foremost that there is no doubt whatsoever that the parents of the interested party provided him with care and invested a great deal of time in this. Nor is there any doubt that the decision of the stakeholder's parents to provide care themselves instead of making use of the services provided by healthcare professionals has resulted in cost savings for the stakeholder and the government. However, this in itself does not mean that costs can be deducted in connection with the care by the parents. This requires that the legal conditions for deduction have been met. 2.7. With regard to the deduction of expenses for extra home help, the court considered the following for the year 20151: “2.5. Pursuant to Article 6.17, first paragraph, opening words and part e, of the Income Tax Act 2001, expenditure on specific health care costs is expenditure incurred for additional home help due to illness or disability. Pursuant to the fifth paragraph of the aforementioned article, expenses for additional home help are only taken into account insofar as they appear from dated invoices in which the name and address of the home help are stated in a clear and well-arranged manner. 2.6. It is not in dispute between the parties that conditions are attached to the deduction. Mr [name] was also informed of this by the inspector, including in the conversation on 12 June 2016, which he conducted on behalf of the interested party. He stated at the hearing that he was aware of these conditions, but that he was unable to meet them. The court considers that the consequence must be that the interested party is not entitled to the deduction. 2.7. The court also considers that costs incurred to make home help unnecessary cannot be deducted as expenses for additional home help. The Supreme Court has already ruled on this in its judgment of 5 February 1986 (ECLI:NL:HR:1986:AW8103 and published in BNB 1986/132). This judgment relates to the predecessor of the current article of the law, but has retained its effect. The Supreme Court ruled: “4.2. The circumstance put forward by the interested party that the expenditure in question also served to reduce the necessary costs of additional home help cannot help him, since it is contrary to the text of the aforementioned Article 46, paragraph 3, opening words and letter b [addition of the court : of the 1964 Income Tax Act], would constitute invalidity expenditure not only related to expenditure on additional home help but also expenditure which renders home help wholly or partly superfluous.” Also, home help in kind by a family member cannot be regarded as expenditure for specific healthcare costs within the meaning of Article 6.17, first paragraph, part e, of the Income Tax Act 2001. 2.8. The interested party states that he was informed by employees of the Tax Authorities about the possibility of deducting the costs incurred as expenses for extra home help and that this was confirmed again during the conversation on 12 June 2016 in Middelburg. The court interprets this as an appeal to the principle of trust. When asked, [name] stated at the hearing that, as his son's representative, he was also made aware of the conditions for eligibility for this deduction during the interview in question. As under 2.6. considered [name] acknowledged at the hearing to be aware of these conditions. An appeal to the principle of legitimate expectations cannot therefore succeed. 2.9. Finally, the interested party argues that the requested deduction must be granted on the basis of reasonableness. In the opinion of the court, the inspector has correctly applied the applicable legislation and there is no conflict with the general principles that apply to it. The court considers that from the documents in the case and what was discussed at the hearing an image emerges that reflects that [name] and his wife felt compelled to provide care themselves instead of making use of the services provided by healthcare professionals. All this against the background that the specific problem of the interested party means that finding suitable care has proved difficult over the years (in the view of [name] virtually impossible). Moreover, the income of the interested party is insufficient to be able to pay the costs thereof. In the absence of options, the parents provided the care themselves. However, the tax legislation does not provide for an allowance or a right to deduct in the manner advocated by the interested party. The classification of the system of deduction options in the Income Tax Act 2001 is a choice that is reserved for the legislator, who has a wide discretion in this regard. Insofar as the interested party has intended to argue that the legislation is not reasonable and fair on this point, the court considers that it must administer justice according to the law and may under no circumstances assess the intrinsic value of the law on reasonableness and fairness (Article 11 of the Act of 15 May 1829, Official Gazette 28, containing General provisions of the legislation of the Kingdom).” 2.8. The court sees no reason to rule differently for the years 2016, 2017 and 2018 than it did for the year 2015 and therefore decides accordingly. The court adds the following. 2.9. The interested party argues that it makes no sense to issue him invoices for the care provided by his parents, because he cannot pay these invoices anyway. Although the court can follow the line of thought, this argument cannot help the interested party. One of the legal conditions for deducting expenses for extra home help is simply that there must be actual expenses by the interested party (and that these must be apparent from dated invoices) and this is not the case. 2.10. Furthermore, it was argued at the hearing on behalf of the interested party that the deduction of expenses for extra home help when the assessment IB/PVV 2019 was determined was honoured. According to the interested party, there has been a change of position on the part of the inspector, from which – as the court understands – confidence can be derived that this change of position also applies to the current years. The inspector stated at the hearing that the tax return 2019/IB/PVV 2019 was not assessed by the inspector, but was processed automatically, so that no confidence can be derived from the payment of the deduction of expenses for extra home help. On behalf of the interested party, it was objected that an employee of the tax telephone service said to his father 'we are working on it' and that the assessment phase for 2019 ultimately lasted 32 months. In the opinion of the court, the appeal of the interested party on the principle of legitimate expectations fails. In principle, the court considers it credible that the IB/PVV 2019 declaration has been completed automatically. The objections raised on behalf of the interested party do not give sufficient cause for doubt. The statement 'we are working on it' by an employee of the tax telephone service can be interpreted in different ways and – even when viewed in conjunction with the fact that the assessment phase lasted 32 months – does not automatically mean that the tax return must be filed manually by the inspector. has been assessed. Therefore, no confidence can be derived for the current years from merely following the IB/PVV declaration 2019, because the payment of the deduction of expenses for extra home help is not based on an explicit position statement by the inspector. FSV 2.11. During the objection and appeal phases, the interested party has always expressed the suspicion that ethnic profiling has taken place against him and that, as a result, the expenses claimed in deduction for specific health care costs have been wrongly under a magnifying glass for years. According to the interested party, this suspicion was confirmed by a letter from the Tax Authorities dated May 27, 2021, in which it was stated that his data had been included in the Fraud Signaling Facility (FSV) database and that the use of that facility did not comply with the General Data Protection Regulation (GDPR). GDPR). 2.12. When asked at the hearing, the inspector stated that it had examined the ejection reasons for the IB/PVV declarations for the years from 2010 onwards. According to the inspector, the IB/PVV declaration for the year 2013 is the first declaration of the interested party that has been ejected by the system for a manual check. According to the inspector, the ejection reason related to the amount of the deductible items taken into account in relation to the amount of income. At the hearing, the inspector expressed the strong suspicion that the code 1043 was assigned to the interested party because of the corrections made for 2013, which resulted in the declarations of the interested party for the following years also being ejected for a manual check. According to the inspector, this suspicion is confirmed by the fact that the deduction of expenses for specific health care costs is stated in the system as a rejection reason for the years 2014 to 2018, with reference to the correction of the previous year and project code 1043. The inspector can, to it has stated that it does not consult the FSV database itself, but in view of the ejection reason it considers it likely that the audit over 2013 was also the reason for inclusion in the FSV database. 2.13. The court considers that it follows from the judgment of the Supreme Court of 10 December 2021, ECLI:NL:HR:2021:1748, that if a taxpayer declares a deductible item in his tax return and it is established in the assessment scheme that he (partially ) has no right, it is not unlawful for the inspector to check the returns for other years. In principle, this also applies if that finding leads to data of the taxpayer being stored in a file, and even if that data processing is unlawful in itself. In principle, the legality of the inspector's decision to check a return is not affected by the way in which information about the taxpayer is processed. This may be different if the check results from a risk selection, a processing of personal data in a database or the use of a database in which personal data are stored, based on a criterion that leads to a violation of a fundamental right against the taxpayer, such as a violation of the prohibition of discrimination on the basis of origin, orientation or religion. 2.14. The court considers what the inspector has stated about her observations in the various systems credible. Moreover, the interested party has not contested those observations. The court then considers the statement of the inspector plausible that the corrections to the deduction of expenses for specific health care costs were the direct reason for the investigation of interested parties' income tax/PVV declarations for the years 2016, 2017 and 2018. On the basis of the procedural documents, there is no direct lead to suspect that there were other ejection reasons or that the ejection reason was influenced by a factor other than the correction for 2013. It can therefore not be established that the verification of the deduction of specific health care costs included in the tax return took place on the basis of a criterion that leads to a violation of a fundamental right against the interested party, such as a violation of the prohibition of discrimination on the basis of origin, orientation or religion. In the opinion of the court, the ejection of the interested party's declaration does not entail, for the aforementioned reason, that the inspection of the interested party's declaration has taken place in a way that is so contrary to what may be expected of a properly acting government that the corrections must not be made. . The mere circumstance that the data of the interested party are included in the FSV database, cannot lead to a reduction or annulment of the assessments, even if this inclusion is deemed unlawful in the light of the GDPR, in view of the judgment of 2.13. the high Council. Conclusion 2.15. In view of the foregoing, the appeals are dismissed as unfounded. 2.16. The court sees no reason for an order to pay costs. This statement was made by mr. M.R.T. Pauwels, judge, in the presence of mr. F.E.M. Houben, Registrar, on June 2, 2022 and made public by means of anonymized publication on www.rechtspraak.nl. The Clerk, The Judge, Copies sent by registered mail to the parties on: Remedy The parties can appeal against this decision within six weeks after the date of dispatch to the Court of Appeal in 's-Hertogenbosch (tax chamber), PO Box 70583, 5201 CZ 's-Hertogenbosch. The following must be taken into account when lodging an appeal: 1. A copy of this decision is submitted with the notice of appeal. 2 - the notice of appeal must be signed and state at least the following: a. the name and address of the applicant; b. a date; c. a description of the decision against which the appeal has been lodged; d. the grounds of the appeal. Citizens can lodge an appeal digitally. Use can be made of the forms on Rechtspraak.nl / Digital desk for administrative law. 1 Court of Zeeland-West-Brabant 13 August 2019, ECLI:NL:RBZWB:2019:3642. See also in appeal Court of Appeal of ’s-Hertogenbosch 31 December 2020, ECLI:NL:GHSHE:2020:3744.
