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ECLI:NL:RB.GEL: 2023:137
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Gelderland Court of Justice
Date of ruling 02-06-2023
Publication date 05-06-2023
AWB case number - 23 _ 686 and AWB - 23 _ 691
Jurisdictions/Administrative Procedural Law
Special featuresFirst instance - single
Indication of contents
Appeals against late decisions by the Tax Authority/Surcharges under the Recovery Operation Surcharges Act. The court does not seek to comply with the period used by the Central Netherlands District Court until 1 July 2024. The court sees no reason to deviate from its own fixed course of conduct regarding appeals (failure to decide in time by the Tax Authority/Surcharges) in advance of the appeal ruling.
Vindplaatsenrechtspraak.nl
Ruling
GELDERLAND COURT
Arnhem seat
Administrative law
case numbers: ARN 23/686 and 23/691
Single Chamber ruling of 2 June 2023
in the cases between
[Plaintiff A] from [place B], plaintiff
(Agent: Mr E.G. Engwirda),
and
the Tax Authority/Fees, the department
(Agents: Mr M. Burghout and Mr M. Azdoveali)
Introduction
1. In this ruling, the court assesses the appeals lodged by the plaintiff because, in its opinion, the service did not decide on time on its appeals dated 16 May 2022. An appeal is against the service's decision of 18 November 2021, marked UHT-DC-I A, where the service decided that no compensation will be granted to the plaintiff for the 2010, 2012 and 2013 allowance years (case number 23/686). The other appeal is against the service's decision of November 18, 2021, marked UHT-DC I, setting the final compensation amount for the 2011 tax year (case number 23/691).
1.1.With the forms dated 7 October 2022, the plaintiff declared the service in default. On January 27, 2023, the court received the plaintiff's appeals against not taking a decision in time. The plaintiff states that the service did not decide on its objections within the decision period, nor within two weeks after the notice of default.
1.2.The service responded to the appeals with a statement of defence. The plaintiff responded to the defence.
1.3.The court heard the appeals in court on 25 May 2023. This involved: the plaintiff's agent and the agents of the service.
Court review
2. In this judgment, the court declares the appeals admissible and well-founded and imposes a period of decision and a penalty payment on the service. When setting the decision period, the court adheres to the fixed course of conduct previously announced by it concerning appeals, not taking timely decisions by the service. This means that the court is not seeking to comply with the ruling of the Central Netherlands District Court of 14 April 2023.1 The court explains below how it reached this opinion and what the consequences are.
Are the appeals admissible and well-founded? 3. It follows from the service's letters dated 24 May 2022 that a committee has been set up to decide on the objection.2The parties agree that the service did not decide within the decision period. After the end of the decision period, the plaintiff declared the service in default. The appeals were received by the court more than two weeks later. Because the service has not decided on the appeals within two weeks of receiving the notice of default on 12 October 2022, and has still not decided, the appeals are admissible and well-founded.
What decision period is imposed on the service? 4. If the appeal is well-founded and no decision has been announced yet, the court will determine that the governing body will still announce a decision within two weeks of the date of sending the ruling. Only in special cases can the court set a different period.3
4.1.The service has still not made a decision (s). The service must still do this. In the defence (dated 6 March 2023), the service requested a decision period of ten weeks. This period supports the service as follows. The service has set up an Appeals Advisory Committee (BAC) and will not take a decision until the BAC has issued advice. Prior to the advice, a hearing will take place at the invitation of the BAC. The service must prepare a written response before the hearing and send the documents to the BAC. The BAC needs four weeks after the hearing to reach an opinion. The service then needs two weeks to make a decision on objection.
4.2. In these cases, there is a special case. A large number of objections were received against decisions taken in response to applications for a reassessment of the childcare allowance, far more than expected. These objections should all be carefully reviewed. A period of time should do justice to the real possibilities to decide on an objection, but also to the importance of receiving a decision within the foreseeable future.
4.3. The hearing discussed whether, in this case, the deadline for deciding on the plaintiff's appeals can be set on 1 July 2024. In doing so, the service referred to the ruling of the Central Netherlands District Court of 14 April 2023.4 The service now makes this request in its defenses both against the failure to take a timely decision on objection and appeals against the failure to take a timely decision on a request for a review.
4.3.1.The court generally rejects this request. An appeal has been lodged against that ruling by the Central Netherlands District Court and there are courts that do not follow the line of the Central Netherlands District Court, see, for example, the Rotterdam District Court.5 The court sees no reason to deviate from its established course of conduct in this regard in advance of the appeal ruling against both rulings.
4.3.2. To this end, it takes into account that the legal provisions on appeals against late decisions are there to give an administrative body an incentive to decide (quickly) on an application or objection. This option is included in the law to give an interested party a remedy to seek legal protection against not taking a decision in time. According to settled case law, the further period given to an administrative body should not be unnecessarily long, nor unrealistically short.6 When setting that period, the court must take into account the interests of the applicant. The 13th progress report on recovery surgery surcharges shows that in the case of comprehensive assessments, the service decides in 57% of the cases within the (further) period given by the courts. In the event of an objection, this is 35%. The (further) period given by the court is therefore feasible. Moreover, it is not the court's task to take action against the structural failure to meet the legal deadlines for resolving the review requests and objections. This is a political task and apparently the House of Representatives saw no reason to intervene in the length of the deadlines, even though all progress reports show that the legal decision deadlines were structurally not met and were unrealistic.7
4.4. In this case, the court does not consider the decision period of ten weeks requested in the defence to be unnecessarily long, nor unrealistically short. In addition, the court does not consider a shorter decision period realistic and a shorter decision period impairs the due diligence. The court does consider the twenty-week decision period requested at the hearing to be unnecessarily long, because it does not consider the period of ten weeks unrealistically short. That is why the court decides that the service will announce a decision on both of the plaintiff's appeals within ten weeks of the date of sending this ruling. This decision period covers the entire process for processing both objections.
4.5. The court sees no reason to extend the decision period, as requested by the service, by a period of time that covers the period pending the BAC hearing. In view of the substantiation of the request for a decision period of ten weeks, that period has already been included.
4.6. The court sees no reason to decide that the decision period is extended by the period in which the consideration of the objection is delayed due to the parent's fault. This causes (too many) ambiguities. That is why the court only sees reason for this if there has already been a delay caused by the plaintiff. This has not been proven so far. In addition, the example mentioned by the service that if a parent has not (fully) expressed the grounds of objection yet is not an obstacle to the progress of processing these objections. The documents show that the objections do contain grounds. The example mentioned by the service therefore does not occur in this case.
What penalty payment is imposed on the service? 5. The service requested the court to impose only one penalty payment. This is because it was one application, the two decisions were made on the same date, the plaintiff's objections were filed simultaneously and the objections are also being further processed jointly. In doing so, the service relies on a ruling by the Central Appeals Board.8 from which it follows that if there are applications — or letters of objection — that are made (almost) simultaneously and are in such a way related in terms of content, a penalty payment is not due per decision not made in time.
5.1. In this case, the plaintiff made one application for a reassessment under the childcare allowance. The service could therefore have decided on this in one decision. In the court's opinion, this provides sufficient coherence to impose only one penalty payment.9 The fact that the service has split its decision on the reassessment into two separate decisions does not change the court's opinion on this.
5.2. The court states that the service must pay a penalty of €100 for each day that the service still exceeds the decision period. In addition, a maximum of €15,000 applies. The penalty payment applies to making a decision on both appeals, which means that the penalty payment will run even if only one of the two appeals has been decided within the specified period. The penalty payment is in line with national policy.10 The court sees no reason to impose another penalty payment in this case.
Conclusion and consequences
6. The appeal is well founded. This means that the plaintiff is right and the service receives the period specified under 4.4 to still decide on the appeals and the penalty payment mentioned under 5.2 is imposed.
6.1. Because the appeal is well-founded, the service must reimburse the plaintiff for court fees. In addition, the plaintiff receives compensation for her court costs. The service must pay that fee. This allowance amounts to €1,255.50. This is because the case is only about whether the decision period has been exceeded and the plaintiff's agent filed two appeals and attended the hearing. The fact that the plaintiff's agent filed two appeals explains the court to the disadvantage of the service. After all, the service has chosen not to take one decision that can be objected to, but two separate decisions. As a result, it is also possible to file two letters of appeal and for each appeal that is not decided in time to file an appeal not to take a decision in time. Furthermore, no costs have been incurred that can be reimbursed.
Decision
The court:
- declares the appeals well founded; - annuls failure to take a decision in time, equating with a decision; - instructs the service to publish a decision on the appeals within ten weeks of the date of sending this ruling; - states that the service must pay the plaintiff a penalty payment of €100 for each day by which the service exceeds the aforementioned period, with a maximum of €15,000; - determines that the service must pay the clerk must reimburse the plaintiff with a right of €100 (2x €50); - orders the service to pay €1,255.50 in court costs to the plaintiff.
This ruling was made by mr. W.P.C.G. Derksen, judge, in the presence of mr. K. Berends, clerk. The ruling was pronounced publicly on June 2, 2023.
clerk judge
A copy of this ruling was sent to the parties at:
Appeal information
A party that does not agree with this ruling may send an appeal to the Administrative Jurisdiction Division of the Council of State explaining why that party disagrees with this ruling. The appeal must be filed within six weeks of the date on which this ruling was sent. If the petitioner cannot await the hearing of the appeal, because the case is urgent, the petitioner can ask the Provisions Judge of the Administrative Justice Department of the Council of State to take an interim injunction (a temporary measure).
1 Central Netherlands District Court April 14, 2023, ECLI:NL:RBMNE: 2023:1702.2A committee as referred to in article 7:13 of the Awb.3This follows from article 8:55 d, first and third paragraphs, of the General Administrative Law Act.4 Central Netherlands District Court April 14, 2023, ECLI:NL:RBMNE: 2023:1702.5 Rotterdam District Court April 26, 2023, ECLI:NL:RBROT: 2023:3474.6 Compare ABRVs October 20, 2021, ECLI:NL:RVS: 2021:2346, under 10.7.7Compare Rotterdam District Court April 26, 2023, ECLI:NL:RBROT: 2023:3474.8CRvB May 4, 2017, ECLI:NL:CRVB: 2017:1815.9 Compare ABRvS June 15, 2016, ECLI:NL:RVS: 2016:1675.10 https://www.rechtspraak.nl/Onderwerpen/Overheidsorganisatie-beslist-niet-op-tijd/Paginas/extra-dwangsom.aspx#tabs
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