#29: The proceeds of tax fraud

Fighting corporate fraud and other misconduct is a top priority of the Department of Justice. One of the main goals is to confiscate illegally obtained profits. One important legal exception is that the Public Prosecutor cannot confiscate profits gained through tax fraud. Article 74 of the State Taxes Act holds this prohibitions since these proceeds should be recovered by the tax inspector by imposing a(n additional) tax assessment. But what if the tax authorities do not have the means to impose a tax assessment? For instance because the recovery period elapsed?READ MORE

#17: White lies or swindle?

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

#13: Taxes and the upcoming elections

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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#10: Fired by the Criminal Court

As discussed in lawlunch #06 the Dutch authorities try to fight fraud by prosecuting the professionals – the facilitators of the crime – involved. Practice shows that (tax) advisors, accountants and notaries are increasingly put in the spotlight of a criminal investigation. As explained in lawlunch #06 professionals can be faced with administrative penalties, criminal prosecution or disciplinary proceedings. Although all of these possibilities are devastating for one’s career there is one accessory penalties which simply puts an end to a career. This is the accessory penalty of the prohibition to exercise your profession.READ MORE

#07: Accessory penalties and measures

The Dutch sanctions system distinguishes between penalties and measures. Penalties are mainly aimed at punishment and general deterrence. Measures, on the other hand, aim for the improvement of the security and safety of persons or property. Another element is the restoration of the situation as it was before the criminal conduct occurred. Practice shows that besides the possibility to punish someone who is convicted of a crime with imprisonment, community service or a (severe) fine, the possibility of imposing accessory penalties and measures is becoming more common. Therefore an overview of such penalties and measures as stated in the Dutch national law might be helpful.READ MORE

#03: Dutch pragmatism is taking over

The public prosecutor’s office in the Netherlands is of the opinion that professional privilege creates an obstacle in criminal investigations, mostly in fraud cases. In a public statement a public prosecutor stated that professional privilege is misused by for instance lawyers in order to cover up potential evidence in fraud cases. The public prosecutor’s office requested the judicial powers to clarify the scope of the professional privilege. It is not clear whether this public request of the public prosecutor’s office was obeyed. However we notice an increasing number of judicial decisions in which the professional privilege is object of discussion. While the professional privilege has a lot of interesting aspects we would like to lift out one topic. In this article we concentrate on the rules and procedures with regard to a search and seizure of for instance a law firm. Furthermore we question whether the current practice meets the criteria of the European Court of Human Rights (ECHR).READ MORE