#20: ‘Fail to notify’ project and unusual transactions

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The Dutch Anti-Money Laundering and Anti-Terrorist Financing Act (hereinafter: Wwft) entered into force on 1 August 2008. The Wwft implements the EU’s Third Anti-Money Laundering Directive in Dutch national law. The Wwft provides a set of measures to prevent the use of the financial system for money laundering or terrorist financing. An important element is that every institution subject to the Wwft should perform a client assessment. Whereas institutions must – in principle – comply with all client assessment measures, the intensity with which measures are applied may be adjusted to the risk posed by a certain type of client, relation, product or transaction. Another important measure is that a financial institution or other institution that, in a professional capacity or on a commercial basis, provides certain (financial) services identified by the law, must notify any unusual transactions to the Financial Intelligence Unit Nederland  (FIU). Unusual transactions may be identified using the so-called list of indicators. But what happens if you fail to notify an unusual transaction to the FIU Nederland?READ MORE

#19: The Netherlands discards voluntary disclosure?

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The (demissionairy) state secretary of finance announced on 12 July 2017 that he wants to discard the voluntary disclosure from 2018 onwards. This announcement follows his letter to the government of 17 January 2017 in which the next steps in the ‘fight against fraud’ were announced. We refer to Lawlunch #13 for the announced measures. To keep you posted on the recent developments we will raise some legal questions which arise following these measures. Will the voluntary disclosure for instance be completely discarded from the law? And will it also affect the possibility of voluntary disclosure in order to avoid criminal prosecution for tax fraud?READ MORE

#18: What is the profit of money laundering?

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In Lawlunch #09 we gave a brief overview of the relevant jurisprudence regarding the crime of money laundering. Furthermore we stipulated that money laundering is a beloved ‘catch all’ charge of the Dutch Public prosecution. It is often used as a safety net to get an easy conviction. Since 1 January 2017 of this year new legislation on ‘simple money laundering’ has come to force and created even more opportunities for the prosecution. Another reason for the public prosecution to charge someone with money laundering is that they believe that it is an easy way to recover illicit assets. Recent jurisprudence however shows that the prosecution service has to step up it’s game in order to achieve that goal which might not be as easy as the prosecution would like it to be.  READ MORE

#17: White lies or swindle?

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Various classic criminal offences are getting more common in the area of fraud cases. Examples are charges of forgery or money laundering in a case which is in principle a tax fraud case. The wide coverage of those penal provisions make them a beloved weapon for the authorities to prosecute alleged fraud. If tax or another kind of financial fraud cannot be proven, these kind of provisions are a good back-up. In practice they are some sort of safety net. The new kid in town seems to be the charge of swindle. Jurisprudence shows that article 326 of the Dutch Penal Code is getting more and more popular. But when does an act qualify as swindle? The Supreme Court of the Netherlands has set some records straight by the end of last year by giving an overview judgement .READ MORE

#16: Fishing expeditions, or not?

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Transparency is a keyword these days. The banking secrecy is something that belongs to the past. All over the world information is exchanged between countries and tax authorities in order to counteract tax evasion. Also in the Netherlands, the Dutch Tax Authorities have intensified their efforts to prevent tax evasion. However, it is up for debate whether these authorities are overreaching their powers. In this article we take a closer look at two recent cases in which the Dutch Tax Authorities pushed the limits in their attempt to receive information from UBS and American Express by submitting information requests to foreign tax authorities. Although the Courts in these two cases allowed the information exchange, we have some critical notes.READ MORE

#15: Fundamental rights are not always stretched to fit the purpose

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Procedural errors are the thorn in the side of lawyers. At least, the (lack of) consequences of such errors. In Lawlunch #02 we explained how the system for compensation due to procedural errors works in the Dutch criminal law. Case law shows that it is an uphill battle to get procedural errors acknowledged and to receive compensation for these errors the government made during investigation. In tax law other criteria are applicable when it comes to procedural errors. These criteria and the interpretation by the courts are very refreshing.READ MORE

#14: International servers and data collection

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We can hardly live anymore without foreign storage- and communication services like Gmail, Box, OneDrive or Apple Icloud. These services use mostly cloud applications and in most cases the cloud is owned by a third party. These applications can be accessed all over the world through different devices. It is therefore possible and likely that part of the data is stored in another country than the country where the owner of the data lives. In the Netherlands it is questionable whether the public prosecutor can order or seize data which is accessible in the Netherlands but is stored abroad.READ MORE

#13: Taxes and the upcoming elections

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Tax evasion and tax fraud are two different things even though the media tries to make you believe otherwise. Tax fraud is deliberately not filing a complete tax return due to which the public treasury is harmed. Classic tax fraud usually is committed in a non-transparent way, so the authorities have a hard time to discover it. Tax evasion however is no more than avoiding to have to pay (certain) taxes. Even though the difference between the two is quite clear, the two get generalized because tax evasion has become an unpopular phenomenon. The Dutch authorities in their ‘fight against fraud’ make grateful use of this situation, especially with the upcoming elections in March 2017.

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#12: Happy New Year!

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Only two days left until 2016 will come to an end.

It is safe to say that 2016 has been a rollercoaster for the international community with amongst other things Brexit and Trump. Time will tell whether this will affect the developments in the cross boarder investigations and jurisprudence.

The year 2016 was a good year in which the various legal development highs and lows have passed in review. One thing is certain; these developments provide opportunities which we can and should use. We hope to have given you inspiration to do so.

For now; happy holidays and see you in 2017!

#11: When may your smartphone be investigated?

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Privacy is a hot topic these days now that everywhere around us data is being collected. Our tablets and smartphones contain a lot of information about our private lives. Not only all your contacts are accessible, also the communication with these contacts is saved. Your smartphone nowadays even knows how many steps you have taken today and where. It is not hard to imagine how much valuable information a smartphone contains for investigative departments of the police. The question is when these data carriers may be seized by the authorities? And when may the data be investigated on your phone? In the Netherlands a discussion exists on the question whether police officers may seize a smartphone upon arrest and search through the data. We would like to share this discussion with you.READ MORE