Received a reminder or enforcement order, but not the tax assessment, what can I do?

When sending a tax assessment, things sometimes go very wrong at the Tax Administration. You don’t receive the tax assessment itself, but you do receive a reminder for leaving that tax assessment unpaid or even a penalty order, with the tax authorities also charging fees. This blog answers the following questions:

– Can I (still) object to the tax assessment itself?

– When is the tax authority late in imposing the tax assessment?

– What can I do if the tax authorities do not want to deal with the substance of my objection because they think I am too late?

– Can I do anything against the fees charged by the tax authorities?

Can I still object to the tax assessment?

What if the taxpayer does not agree with the amount of the tax assessment: can the taxpayer still object to the tax assessment?

Yes you can. In principle, the objection period starts the day after the date of the tax assessment. For more information on the notification of a tax assessment, read my office colleague Jurgen Scheltema’ s blog. The objection period starts at a different (later) moment, if the taxpayer did not receive the tax assessment due to an error by the tax authorities. The objection period then only starts the day after the taxpayer or his advisor receives a copy of the assessment (Supreme Court 18 April 2014, ECLI:NL:HR:2014:930).

A notice of objection submitted by the taxpayer before receiving the tax assessment is actually too early (premature), which means that the tax authorities will not consider the objection. Article 6:10(1) of the General Administrative Law Act (‘Awb’) provides that a notice of objection will nevertheless be considered if the taxpayer is entitled to believe that the tax assessment has come into being. This is the case if the taxpayer receives a reminder or even a penalty order. For more information on a premature objection, I refer to another blog by my office colleague Jurgen Scheltema.

To file an objection, you can use one of our models: (Income tax/Corporate income tax) or (Turnover tax/Payroll tax).

What if the tax authorities prove plausibly that the tax assessment was sent to the correct address?

The burden of proof that the tax assessment was sent and that it was sent to the correct address rests on the tax authorities. The tax authorities must make this plausible with the shipping records from which it must also follow to which postal company the tax assessment was presented (Supreme Court 17 June 2022, ECLI:NL:HR:2022:875). According to factual case law, a copy of internal records, notes from the administrative processing of a tax assessment or a print-screen from the registration system ODAS, is not sufficient.

If the tax authorities show with the shipping records that the tax assessment (addressed to the correct address) was presented to PostNL or Sandd then it is assumed that the tax assessment was sent. The taxpayer must then present facts and circumstances that cast doubt on the receipt or presentation of the tax assessment (Supreme Court 7 May 2021, ECLI:NL:HR:2021:705). In a case that played before the Court of Appeal (Arnhem-Leeuwarden Court of Appeal 23 July 2024, ECLI:NL:GHARL:2024:4878), the taxpayer argued that it was a fact of common knowledge that PostNL did not meet the set standards for mail delivery. The taxpayer substantiated this with the fact that the registered invitation to the court hearing had not been delivered to its agent. According to the court, the exceeding of the time limit in this case was excusable, as a result of which (this case was not an objection but an appeal) the appeal still had to be dealt with substantively.

If the taxpayer does not know how to cast doubt on receipt, an appeal on the grounds of excusable exceeding of the time limit may offer relief. Such an appeal will succeed if the taxpayer has a good reason for being late in submitting the notice of objection. This concerns circumstances outside the taxpayer’s sphere of risk. Again, I refer to Jurgen Scheltema’ s blog. I also wrote a blog earlier on the relaxation of the excusable delay.

Can the tax authorities be late in imposing the assessment?

Besides fighting the amount of the tax assessment, it is also good to keep an eye on the following: was the assessment imposed within the assessment period?

The tax authorities must adhere to certain deadlines when imposing tax assessments. For example, the tax authorities must make a final assessment of income tax and corporate income tax within a period of three years after the year to which the tax debt relates (art. 11(3), Algemene wet inzake rijksbelastingen (‘AWR’)). That period can be even longer if the tax authorities have granted a postponement for filing tax returns (art. 11(3) AWR). For an additional assessment (section 16(3) AWR) or an additional tax assessment (section 20(3) AWR), a period of five years applies after the period to which the assessment relates. The recovery period for foreign assets or income is even 12 years (section 16(4) AWR).

In practice, it is assumed that the tax assessment was properly announced on the date of the date. If a taxpayer claims that he did not receive the tax assessment, the date of the assessment notice is no longer leading. It is then up to the tax authorities to use the mailing records to prove plausibly that and when the assessment was sent (to the correct address).

If the period within which the tax authorities can impose the tax assessment has meanwhile expired and the tax authorities do not make it plausible that the tax assessment was validly published, the tax authorities will be too late in imposing the assessment. As stated above, the date on which the interested party or his advisor receives a copy of the assessment is the date on which the assessment was published. If this is outside the assessment, additional assessment or back assessment period, the assessment must be annulled. Exceeding the term was the case in a case before the district court of Zeeland-West Brabant (18 March 2022, ECLI:NL:RBZWB:2022:1417).

In this case, the deadline for which the tax authority had to issue the 2014 income tax assessment expired on 30 April 2018. The assessment was dated 16 April 2018, but the taxpayer claimed that he did not receive the assessment until later than 30 April 2018. It was up to the taxman to make a plausible case that the sending had indeed taken place before 30 April 2018. The taxman had not submitted any document in support of its claim that the assessment had been sent. Therefore, according to the court, it had not become plausible that the assessment had been imposed within the deadline. The court subsequently quashed the assessment.

The tax authorities declare my objection inadmissible, now what?

In our practice, we often see that the tax authorities declare a notice of objection inadmissible because it was submitted outside the objection period, or at least so the tax authorities claim. Is that the end of the matter?

No, the taxpayer can lodge an appeal against the inadmissibility with the court within six weeks after the date of the decision on the objection. The court will first consider whether the objection was rightly declared inadmissible. The judge will assess this on the basis of the shipping records. If the tax authorities have wrongly declared the notice of objection inadmissible, the judge can refer the case back to the tax authorities with a request to decide on the objection again. A taxpayer can also ask the court to take the case further and decide on the remaining points of dispute.

Can I object to the prosecution costs?

Finally, the prosecution costs charged by the tax authorities for sending a reminder or issuing a writ of execution may feel unfair if the taxpayer did not receive the tax assessment itself and was therefore not in default of payment. Can the taxpayer do anything against this?

The taxpayer can object to the continuation costs charged. This is because the taxpayer is only in default if he has received the tax assessment and has not paid it within the payment period or obtained an extension of payment.

If a taxpayer disputes the receipt of the tax assessment and thus implicitly the mailing, it is up to the tax authorities to use the mailing records to show that the tax assessment has been presented to PostNL or Sandd for mail delivery and sent (to the correct address). The taxpayer himself is responsible for ensuring that his correct and complete address is known to the tax authorities. The tax authority assumes (without notice to the contrary) the address that is registered in the Basic Registration of Persons (BRP).

Conclusion

Taxpayers who receive a reminder or enforcement order while the tax assessment has not reached them (due to an error by the tax authorities) can object to the tax assessment. The taxpayer is well advised to keep an eye on whether the tax assessment was imposed within the assessment period. If the tax authorities declare the objection inadmissible due to exceeding the objection period, the taxpayer can appeal against this inadmissibility in court. Finally, a taxpayer can also object to the prosecution costs charged.

Should you have any questions about the above, please contact one of our lawyers.