The Zeeland-West-Brabant District Court has ruled that a snack vendor has failed to provide sufficient evidence that he has suffered a greater loss of turnover as a result of discarded snacks.
Loss of turnover
The case This concerns a trader who sells chilled and hot drinks, hot dogs, portions of satay and hot ham rolls from stalls he rents at events such as football matches, concerts and festivals. During an audit, the Tax and Customs Administration reconstructs the movement of goods (based on the purchase invoices and the trader’s business operations). In doing so, a theoretical turnover is calculated, which is higher than the turnover actually realised by the trader.
Reversal of burden of proof
As various entries are missing from the accounts, the trader’s accounts cannot serve as a basis for calculating taxable profit. On that basis, the Tax and Customs Administration reverses the burden of proof (following the issue of a request for information to which an adequate response was not provided). As the entrepreneur has not recorded the snacks that were thrown away, he is unable to meet this (increased) burden of proof. The Court therefore upholds the additional tax assessment imposed.
It is interesting to note the court’s reference to a decision it made at the end of 2020, following the information order, ruling (which has not yet been published). In it, the court considers the following: “In this regard, the court took into account, amongst other things, the absence of any records or evidence regarding the scale of the number of snacks discarded. The interested party should be expected to provide more information on this point. After all, this concerns a business whose core activity is the sale of snacks and in which the business owner claims that (i) fairly substantial quantities of ready-to-sell snacks are discarded and (ii) that varying quantities of portions of discarded snacks were identified when he asked people he had approached to prepare portions from the stock to be discarded. This means that lost stock constitutes such a significant element – and potential point of contention – in the interested party’s business that there must be a record of relevant aspects which can provide insight into the quantities of discarded snacks. The interested party’s argument that counting leftover snacks is very time-consuming and difficult, and therefore cannot be expected of him, is rejected by the court, as it considers that the interested party could and should reasonably have done more to provide insight into the quantities of snacks discarded.“.