On 22 July 2024, a consultancy firm lodges an appeal against an additional assessment of the tax on passenger cars and motorcycles (BPM). The consultancy firm submits a power of attorney that is already more than three years old. The Court of Appeal requests a power of attorney no more than three months old and gives the firm until 3 September 2024 to provide one. The new authorisation is not received until 6 September, without any explanation. According to the Supreme Court, the Court of Appeal was therefore right to set the case aside. European law does not alter this either.
Too late is too late
The court declares the appeal inadmissible. It therefore does not consider the merits of the case. The agency lodges an objection to this decision – a sort of appeal to the same court. That objection fails because the agency does not provide a reason for the delay. Before the Supreme Court, the agency takes a European line. According to the Charter of Fundamental Rights of the EU, everyone has the right to access to justice. The agency argues that the court is adhering unnecessarily strictly to time limits. The agency also asks the Supreme Court to refer questions to the Court of Justice of the European Union.
Who’s at the table?
Only the taxpayer themselves may bring proceedings against their tax assessment, but they may be represented. If that representative is not a solicitor, the court may request written authorisation. A solicitor is subject to their own professional rules and is not required to submit authorisation. The court may request a recent authorisation without having to explain why. If that authorisation is not received in time, the court may dismiss the appeal. This is subject to the condition that a reasonable period has been allowed to remedy the defect and that the delay is inexcusable.
Europe isn’t helping
Europe largely leaves the rules of procedure to the Member States. However, these rules must not be stricter than those applicable to ordinary Dutch cases, nor must they make litigation practically impossible. According to the Supreme Court, the requirement for authorisation remains within these limits. This requirement ensures that only those who are genuinely authorised can conduct a case. Moreover, for a professional adviser, authorisation can easily be arranged within a reasonable timeframe. Referrals to the European Court are therefore unnecessary.