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Written by:
Sean-Paul Smit


Default surcharge

The Tax and Customs Administration is at liberty to levy a default surcharge whenever a tax payer fails to perform, without the latter actually having to be at fault or culpable where the omission in question is concerned. It is only where there is no question at all of culpability on the part of the tax payer or where the latter has adopted what is a “reasonably arguable position” that no default surcharge may be levied.

The Arnhem-Leeuwarden Court of Appeal was presented with a case which revolved around a default penalty levied against a business owner for tardy payment of his turnover tax as per the tax return he had filed. Tardy payment and non-payment of (all or some the) outstanding turnover tax constitutes non-performance. Having set off his turnover tax charge against an expected rebate for a different period, the business owner in question argued that there could be no question of non-performance on his part. Rather than rewarding the business owner for taking matters in his own hands and quashing the default surcharge, the Court stated that the business owner pending set-off between the tax charge and the rebate should have filed a payment deferral request with the Inspector of Taxes for the outstanding taxes, rather than notifying the Inspector of Taxes – as he had done – that he himself had set off the relevant amounts. The business owner’s modus operandi, the Court found, could neither be said to be free from culpability nor regarded as reflecting a reasonably arguable position, and so the Court ended up siding with the Tax and Customs Administration, which it confirmed had rightly levied the default surcharge.

Dutch version: Verzuimboete

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