Unnecessary restriction of statutory tax privilege

The draft bill amending the statutory tax privilege will lead to a significant change and restriction of the privilege. This is according to the Royal Dutch Association of Civil-Law Notaries (KNB) in its response to the draft bill.

Given the Supreme Court's case law and the Tax and Customs Administration's existing ability to request information from taxpayers, this proposed restriction is unnecessary and disproportionate. It also contradicts the explanatory memorandum to the draft bill . The explanatory memorandum states that the aim is to clarify the statutory right to refuse to disclose tax information and that its scope remains unchanged. The Royal Dutch Tax and Customs Administration (KNB) writes (pdf) that it agrees with the clarification, insofar as necessary. However, according to the professional organization, there is no need to restrict the civil-law notary's right to refuse to disclose information.

General legal principle
According to the Royal Dutch Tax Association (KNB), the statutory right to refuse to disclose tax must not lead to improper use or even abuse to avoid taxation. However, due to its social importance, the civil-law notary's right to refuse to disclose cannot simply be restricted. Moreover, it is incorrect to view the right to refuse to disclose with respect to the Tax and Customs Administration as something special. The right to refuse to disclose is based on a general legal principle that applies regardless of a specific legal area.

Incorrect assumptions
The draft bill limits the civil-law notary's right to privilege to the activities listed in the exemption from litigation under Article 1a, paragraph 5, of the Money Laundering and Terrorism Financing (Prevention) Act (Wwft). The explanatory memorandum refers to these activities as the civil-law notary's actual or normal duties, but these are precisely the activities that civil-law notaries do not normally perform. Consequently, the alignment with the Wwft is based on incorrect assumptions. Moreover, the Wwft is aimed at preventing money laundering and terrorist financing while simultaneously being limited to that objective. By using the exemption provision in the Wwft as the basis for elaborating on the civil-law notary's statutory right to privilege in tax matters, virtually the entire scope of the civil-law notary's work no longer falls under the statutory right to privilege in tax matters. According to the Royal Dutch Bank (KNB), this cannot be the intention.

Connection to criminal procedural law
According to the Royal Dutch Tax Association (KNB), clarification of the notary's right to refuse to testify in tax law should be regulated in the same way as in the Code of Criminal Procedure. In this regard, codifying the current Supreme Court case law on statutory right to refuse to testify would be sufficient.