A tax assessment in which too much income tax was levied in box 3 for the years 2017 to 2020 inclusive, does not need to be reduced if that assessment became final before the Supreme Court’s so-called ‘Kerstarrest’ ruling of 24 December 2021. The Supreme Court ruled on this in two cases that had been brought as test cases.
Christmas judgment
The Kerstarrest ruling held that, from 2017 onwards, the Box 3 system constitutes a breach of the prohibition of discrimination and the right to property if the notional return exceeds the actual return. Tax assessments must then be reduced. However, the statutory provision contains an exception. No reduction will be made if the inaccuracy of the tax assessment stems from case law that was only handed down after the tax assessment had become final. The Supreme Court had already ruled in 2022 that the Kerstar judgment constitutes 'new case law'.
Equal treatment and proportionality
The Supreme Court sees no reason to reverse its earlier decision from 2022. Individuals who did not lodge an objection in time are not in the same position as those who did, and therefore there is no question of discrimination. Nor does the exception for 'new case law' conflict with the principle of proportionality. The objectives of legal certainty and practical considerations are legitimate, and the adverse consequences for those who did not lodge an objection are not disproportionate. No exceptional circumstances have been put forward that would lead to a different conclusion. The appeal in cassation has been declared unfounded.