There has been much talk in the media about the ground-breaking Dutch Supreme Court ruling on the unlawful basis of the capital gains tax. But what does this mean in concrete terms for taxation? Peter Kavelaars, Professor of Economics of Taxation at Erasmus School of Economics, gives an explanation and offers a solution for problems concerning the provisional assessment.
According to the highest tax court, the capital gains tax in effect since 2017 breaches European property law and the prohibition of discrimination. Previously, the Council declared that the tax violated European law. However, it subsequently delegated responsibility for correction to politicians. The Supreme Court recently resolved a case in which it gave an alternative foundation for capital gains taxation. Rather than relying on the tax authorities' fictions, the counsels used the taxpayer's real income.
The provisional assessment will continue in effect until it is fixed, the State Secretary for Taxation guarantees. Professor Kavelaars understands the short-term approach selected, given the complex challenge confronting legislators and tax officials. According to him, taxpayers should not worry being taxed before 2021 on the basis of false returns and asset distributions that the Supreme Court rejected. Taxpayers who have got a preliminary assessment for 2022 are a distinct story. Those with more than a few tons in the bank and who owe tax on the basis of such an assessment will almost certainly pay too much in the short term. Kavelaars does not believe this should be a significant issue. Although taxpayers cannot disagree to a provisional assessment, they may seek a review. Kavelaars advises to do so, citing the Supreme Court's judgement on taxable returns on 24 December.