Making mistakes is human. It can happen to anyone. If you’re wrong, you don’t necessarily do something wrong intentionally. No, you make a mistake while your intentions are right. There is no criminal intent involved. A mistake should therefore not be legalized to criminal intent. A mistake is not the same as acting fraudulent. And fortunately the Amsterdam Court of Appeal shares this opinion.
In its judgment of 3 June 2020, the Court of Appeal of Amsterdam ruled in a case in which the defendant was primarily suspected of having intentionally filed an incorrect VAT return. The inaccuracy was caused by the declared amount of turnover, which was too low. The Court of Appeal acquitted the defendant with respect to the primary charge, because there was no question of a ‘declaration provided for by the Tax Act’. After all, the tax return had not been filed within the required time period, see in that respect also the judgment of the Supreme Court of 28 June 2016. Subsequently, the suspicion was the use of a false document, i.e. a false declaration.
The Court of Appeal ruled that this was a declaration of turnover that usually amounted to a fixed, round amount each month. The turnover that was not declared in this specific declaration related to specific invoices that were not related to the recurring activities of the company. These related to the buy-out of someone from a company. They were therefore incidental invoices. The Court of Appeal ruled that it must be “considered possible” that these invoices were overlooked. There is simply not enough evidence to conclude that the employee deliberately did not include this turnover in the declaration. The Court of Appeal refers to indications in the file that show that someone, in consultation with the defendant, needed money for specific purposes, but according to the Court of Appeal “solid evidence” is lacking.
Where the Amsterdam District Court had still considered that filing the tax return had been organized in such a way “that nowhere in the chain of business operations any form of effective control of the turnover tax to be paid took place and so the considerable chance of filing wrong tax returns was knowingly accepted”, the Court of Appeal ruled otherwise. The Court of Appeal ruled that the specific employee had the task of submitting the turnover tax returns. It concerned a fixed amount per month and was therefore not complex. The situation for this specific period was incidental. According to the Court of Appeal, there was no policy or work process that caused the significant chance of an incorrect tax return and that chance was knowingly accepted. According to the Court of Appeal, it must be considered possible that the error was made by mistake.
In our opinion, this is a correct judgment. A few indications that there could be a motive for fraudulent acts is not enough to conclude that fraud was committed. This requires hard evidence. If this is not the case, then the judge should give the suspect the benefit of the doubt and “consider it possible” that the person involved did not act criminally culpable.