A taxable man hid bank accounts at UBS in Switzerland for years. He surrendered in October 2015, but the Hague Court of Appeal said there could be no question of voluntary disclosure because he had been informed by that bank in July 2015 of a collective application to Switzerland.
A married man lives in the Netherlands and his wife in Switzerland. In his IB/PVV returns for the years 2005 to 2014, he did not mention any bank accounts he maintained in a Swiss bank.
On 23 July 2015, the Central Liaison Office (CLO) of the tax authorities submitted a collective application to Switzerland regarding residents of the Netherlands who have an account with UBS.
Collective request to the Swiss authorities
The group’s request asks the Swiss authorities to provide the (banking) details of account holders during the period from 1 February 2013 to 31 December 2014 who have a Dutch address.
In a letter dated 16 September 2015, UBS informed in writing that account holders meeting the criteria set out in the group’s request had been requested by the Dutch tax authorities for information about account holders at UBS.
The Swiss tax authorities have published an official announcement of the group’s application in the Official Journal of the Swiss Federal Office (Bundesblatt).
On 27 September 2015, the Dutch media also paid widespread attention to the group’s request regarding account holders living in the Netherlands who had not declared compliance with taxes in the Netherlands in relation to their bank accounts with UBS.
On 28 October 2015, the man’s representative informed the inspector that the man wanted to be honest about his bank accounts in Switzerland, which he had not previously stated in his tax returns.
Voluntary improvements at the wrong time
Also that he wants to enter into a settlement agreement with the inspector and that he will invoke the voluntary disclosure regime as referred to in section 67n of the General State Tax Act (AWR).
The tax authorities received disclosure requests on 28 October 2015 and 16 November 2015 respectively, and the Inspector considers that these reports regarding UBS’s hidden assets, which were received after 27 September 2015, were not voluntary and timely, making them eligible for improvements.
Based on the information provided by UBS and the bank documents provided by the man, the inspector imposes additional valuation assessments from IB/PVV 2005 to IB/PVV 2014 and also an additional assessment in inheritance law in relation to the hereditary acquisition of his mother who passed away in 2008.
The Inspector also announces that it will impose fines of 100% for additional assessment years for which IB/PVV returns are filed after 1 July 2009 and will impose fines of 40% in other cases.
When determining the amount of fines, the inspector takes into account that there are hidden (foreign) assets in a country where banking secrecy has been applied for many years, there is intention (conditional), and there are voluntary (late) improvements. It was submitted and full cooperation was given.
The Court of Appeal in The Hague rejects the man’s argument that he did not receive a letter from UBS because he closed his accounts with UBS at the end of 2014. After all, the group’s request relates to the period when the man still had accounts with UBS and the bank also had the man’s account details. In his management of that period. He did not refute the suspicion that the letter was sent to him by UBS and that he received it.
Sufficient attention to the group’s request
The court also pointed out to the man that the group’s application had been published in the Bundesblatt and that significant attention had been given to the group’s application in the Dutch media on 27 September 2015, and that he could have known that the group’s application had been submitted and that it would have been of interest to him as well.
The court decided that the man should have reasonably suspected that the inspector would become aware of his accounts at UBS through the group’s request. In these circumstances, it was no longer possible to make a voluntary disclosure on 28 October 2015 and the provisions of section 67n AWR were not complied with.
The Court also concluded that fines of 40% for additional IB/PVV tax assessments for which returns were filed before 1 July 2009 and 100% for other cases and a fine of 40% for additional assessment in inheritance law are appropriate and order.
Court of Appeal The Hague, ECLI:NL:GHDHA:2023:2032
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