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La motivazione degli atti tributari in Belgio

Bruno Peeters

Elly Van de Velde 

Il saggio si incentra sulla legge belga che disciplina la motivazione degli atti amministrativi del 29 luglio 1991 e, in particolare, sulle possibilità della sua applicazione nei procedimenti tributari. In questo contesto, il tema si sviluppa attraverso l’applicazione della motivazione ratione personaeratione materiae. La motivazione deve essere esplicita ed adeguata al fine di soddisfare i requisiti imposti della legge sulla motivazione degli atti amministrativi; l’atto deve dunque contenere tutte le valutazioni giuridiche e fattuali poste alla base della decisione amministrativa. Giurisprudenza e dottrina evidenziano l’importanza della motivazione, in quanto un atto non motivato può anche condurre alla nullità della decisione amministrativa.

PAROLE CHIAVE: motivazione - procedimenti tributari - adeguatezza - requisito sostanziale - requisito formale

Formal motivation of individual tax acts in Belgium

The article focuses on the Belgian Law on the Formal Motivation of Administrative Acts of 29 July 1991, and in particular on the various application possibilities in tax cases. Against this backdrop, the topic is developed through the application ratione personae and ratione materiae.

The motivation must be explicit and adequate in order to fulfil the requirements of the Law on the Formal Motivation of Administrative Acts; this means that the act contains the legal and actual considerations which are at the basis of the decision. Both the jurisprudence and the doctrine underline the importance of the motivation, even if an unmotivated act could lead to the nullity of the administrative decision.

Keywordsmotivation, tax cases, adequacy, substantial requirement, formal require­ment

1. The Law on the Formal Motivation of Administrative Acts: Generalities

1.1. Introduction

In the 1990s the Belgian legislator has realised that in the relationship citizen – administration, falling back to the unwritten and general principles of proper administration was not sufficient to protect citizens adequately against the possible arbitrary action of the administration. In the context of preventive legal protection, laws on the formal motivation of administrative acts [1], the public nature of the administration [2], and the Ombudsman [3] have been introduced. The purpose of this legislation is to incite the administration – the tax administration included – to a more careful decision-making process, to inform citizens better about the decision-making process and to facilitate the administrative and jurisdictional supervision of these decisions [4].

The present article focuses on the Law on the Formal Motivation of Ad­ministrative Acts of 29 July 1991, and in particular on the various application possibilities in tax cases. Before we go into the fiscal state of affairs, we describe the general significance of this law.

1.2. Significance of the Law on the Formal Motivation of Administrative Acts

All (positive or negative) unilateral individual written legal acts by an ad­ministration that aim at legal consequences, must, since the coming into force of the Law on the Formal Motivation of Administrative Acts in 1991, be motivated explicitly. Purely preparatory acts, such as non-binding advices or proposals, but also implementation measures are, as a consequence, not subject to same.

Independent of how broad the application domain seems to be, the legi­slator has foreseen four exceptions to the explicit motivation obligation. There is no explicit motivation obligation in case this motivation can endan­ger the external security of the State, can disturb public order, can detract from the respect for private life and can detract from the stipulations on the oath of secrecy. Urgent necessity does not release the administration from its obligation of explicitly motivating its acts. In case another law than the Law on the Motivation of Administrative Acts enforces a more stringent motivation obligation (for instance answer to all arguments), this more strin­gent law is to apply to the administration acts.

The motivation has to mention in the act itself the legal and factual considerations, which are at the basis of the decision. The law requires the motivation to be adequate. This is a vague norm, which is assessed in concreto. It is required that the motivation be proportional to the importance of the decision and to the scope of the policy freedom of the administration (bound competence or otherwise). Nevertheless, the motivation is also con­sidered to be adequate, when the decision itself refers to other documents (generally preparatory documents). Four conditions have to be fulfilled to this effect: the content of the document to which is referred has to be known to the administrator or be brought to his knowledge, the document to which is referred has to be adequately motivated, the proposals or advices have to be agreed with in the final decision, and there may not be any contradictory advices [5].

2. Application domain of the formal motivation obligation in tax cases

2.1. Introduction

The Law on the Formal Motivation of Administrative Acts is applicable to the individual administrative acts of the tax administration. The application possibilities of the law are very numerous in tax matters. The doctrine points out that, perchance, the legislator did not aim at such a large application domain, as was apparent from the parliamentary preparation, in which the application of the law on tax decisions, with the exception of an accidental refe­rence (namely the assessment of a municipal tax) is not discussed [6].

The application of the Law on the Formal Motivation of Administrative Acts to the tax decisions has been concretised by the Belgian Minister of Finance in two Circulars (on the assessment and collection of direct taxes) [7].

The control on the respect of the formal obligation of motivation on tax decisions is exercised by the ordinary courts and tribunals [8]. Meanwhile, the greater part of the jurisprudence is convinced of the relevance of the Law on the Fomal Motivation of Administrative Acts on tax acts.

In a number of specific fiscal provisions, the legislator also has given additional clarification on the motivation of specific tax acts [9].

2.2. Application domain ratione personae: the tax ‘administration’

Both tax circulars specify on the basis of the jurisprudence of the Belgian Council of State that the administration is each organ of the federal, regional, provincial or municipal administration, insofar it intervenes as an admini­stration and not as a jurisdictional bodyor in a legislative function [10].

In Belgium, the administrative function is exercised by the regional director. He also has to be considered as an administration in the meaning of the Law on the Motivation of Administrative Acts [11]. His decision will, the­refore, not only have to be motivated explicitly in fact and in law, but also adequately [12]. The question arises whether the decision of the regional director has to be motivated on the basis of the Law on the Motivation of Ad­ministrative Acts or rather on the basis of the specific article 375 of the Belgian Income Tax Code, which determines that his decision must be motivated. The doctrine maintains that this specific tax law imposes a less stringent obligation of motivation than the Law on the Formal Motivation of Administrative Acts, as a result of which the latter is applicable [13].

Similarly, the general director of the Customs and Excise Administration also acts as an administration [14]. Furthermore, the procedure on local taxes nowadays also runs administratively through the bench of mayor and alder­men (municipal) and the governor/executive (provincial) [15].

The direct tax collector can decide whether or not he will grant payment facilities to the taxpayer. The question has been asked to the Minister of Finance whether the positive or negative decision, which the tax collector takes in this context, falls within the application framework of the Law on the Formal Motivation of Administrative Acts.

As the collector here, according to the Minister and the tax administration, takes action in his own name and therefore not as an administrative authority, his decision should not have to be motivated as intended by the Law on the Formal Motivation of Administrative Acts [16]. Also the jurisprudence understands that the decision to grant or refuse payment facilities is not an administrative act subject to the obligation of motivation as intended by the Law on the Formal Motivation of Administrative Acts [17]. This jurisprudence seems to be in line with the judgment of the Belgian Court of Cassation of 24 April 2008 [18] in which the Court poses that the payment facilities «are only tolerated by the accountant, from which the taxpayer cannot derive any right». This judgement would then endorse the position that the possibility for the collector to grant payment facilities is only a certain “tole­rance”, to which the Treasury turns a blind eye.

In the doctrine, however, criticisms have been formulated about this position [19]. The above mentioned judgement indeed shows that the Court of Cassation appears to consider the qualification of the payment facilities as a mere tolerance as a logical consequence of the fact that the collector cannot detract from the legal payment terms anyhow. The granting of payment facilities does not mean that legal payment terms can simply be ignored. The debt remains collectable. Only its implementation has been adjourned. The payment facilities can, in other words, not exclude that the implementation will be resumed as soon as the financial possibilities of the taxpayer take a turn to the better, or that certain implementing measures are being taken, such as a (simplified) garnishment. This brings the doctrine to the conclusion that granting payment facilities is indeed more than a pure and simple tolerance of the collector [20].

A derived consequence of the assertion that granting payment facilities is more than a simple informal tolerance from the collector is that this granting should also be subjected to the formal obligation of motivation [21].

2.3. Application ratione materiae: the ‘administrative act’

Even though both fiscal circulars [22] and the majority of the jurisprudence declare the Law on the Formal Motivation of Administrative Acts in principle applicable to each individual unilateral legal tax act with legal consequences, the Courts of Appeal of Brussels and Liège have decided – (completely) erroneously – that the aforementioned Law is only applicable to administrative acts, which are susceptible of nullification by the Belgian Council of State [23]. The broad interpretation is, according to the doctrine, the wish of the legislator: the only fiscal example in the parliamentary prepa­ration on a local taxation could at the time not be brought to the Council of State but had to be brought to the permanent deputation [24].

In the meantime, the requirement of susceptibility for appeal to the Council of State on fiscal disputes can be questioned from another point of view. Indeed, since the new fiscal procedure rules of 1999, it is not the Council of State in first instance anymore but the fiscal section of the Court of First Instance that is competent on disputes about the application of a tax law [25]. As a consequence, the ordinary Courts and tribunals control whether the Law on the Formal Motivation of Administrative Acts has been respected by the tax administration when posing an individual unilateral legal tax act [26].

The Law on the Formal Motivation of Administrative Acts is of course not applicable to measures of prosecution and implementation. The notification of the intention of the collector (in case the rights of the Treasury are not endangered) to claim a legal mortgage and the notification thereof as garnishment in the hands of the notary public [27] can be quoted as an example. This is however not valid insofar the notification also affects taxes which are not due yet. In this case, legal consequences are indeed created: the exigibility of the tax is advanced by the notification, so that in the present hypothesis, we are indeed looking at an administrative act that has to be motivated formally [28].

Furthermore, the Court of Cassation has decided that the indirect collection by garnishment on direct taxes is an act of execution resulting directly from the law and, furthermore, given that it is only the consequence of a decision taken earlier, it is not an administrative act as intended by the Law on the Formal Motivation of Administrative Acts [29]. The injunction only gives instructions to the bailiff to proceed with the execution of an enforcea­ble assessment note.

A non-exhaustive list of legal tax acts that can be considered within the scope of the Law on the Formal Motivation of Administrative Acts follows. Only a specific fiscal law as stringent as or more stringent than the Law on the Formal Motivation of Administrative Acts can supersede the latter. It should be remarked that the Law on the Formal Motivation of Administration Acts is widely applied in the Belgian tax legislation.

The tax administration has concretized this Law in the relevant circulars. These circulars concern, however, solely the establishment and collection of the direct taxes, which is why we shall also consider the indirect taxes.

2.3.1. Direct taxes

2.3.1.1. Establishment of the income taxes

1. Tax assessment [30]

It is generally accepted that a tax assessment is «a unilateral legal act, materialized by an authentic act through which a competent public authority esta­blished the existence of a certain fiscal debt at the expense of a certain debtor and establishes an enforceable title to collect the taxes due» [31]. In the doctrine, one infers from the above that the (material) obligation of motivation adheres to the assessment itself, the formalisation of which takes place as a rule in the assessment note, the notice of change or in the notification of assessment ex officio. It is the inseparable whole which, as a consequence, is subject to the Law on the Formal Motivation of Administrative Acts [32]. In the jurisprudence, there is a strict distinction between the assessment (the taxation: an administrative act, therefore, formal motivation) and the assessment notice (a mere notification: no formal motivation) [33] as well.

Conversely, the Court of Appeal of Liège decided erroneously that the assessment notice is not an administrative act which is susceptible to nullification by the Council of State, on which, as a consequence, the Law on the Formal Motivation of Administrative Acts is not applicable [34].

2. Notice of change [35] and notification of assessment ex officio [36]

After some ten years of discussion in the jurisprudence and the doctrine about the question whether or not these both acts are legal [37] and in the affirmative, whether they satisfy the conditions to fall under the Law on the Motivation of Administrative Acts, the Court of Cassation has passed a jud­gement.

In principle, the Court of Cassation assumes that the notice of change (resp. the notification of assessment ex officio) is an administrative act as intended by the Law on the Formal Motivation of Administrative Acts. The Court decided however that not the latter Law but the at least as stringent specific article 346 (resp. art. 351) ITC 92 is applicable [38].

In the past, the question has arisen whether the tax administration has to reply to the remarks formulated by the taxpayers after a notice of change or an assessment ex officio. In the absence of a law text, the jurisprudence assumed that no motivation was required for taking or not into account the remarks of the taxpayer [39]. With the Law dated 30 June 2000, the legislator introduced a specific obligation of motivation [40]. From that date onwards, the tax administration has to inform the taxpayer about the reasons which justify its decision. In our opinion, the Law on the Formal Motivation of Administrative Acts also has to yield to this special fiscal legislation.

3. Request for information

Answering a parliamentary question, the Minister of Finance clarified that the document with a request for information is not an administrative act as intended by the Law on the Formal Motivation of Administrative Acts, whereby the motivation does not have to comply with that Law [41]. In our opinion, a request for information does not create any legal consequences.

4. Issuance and waving of an administrative fine [42]

The issuance of an administrative fine also constitutes an administrative act as intended by the Law on the Formal Motivation of Administrative Acts. The article 109 of the Law dated 4 August 1986 on fiscal regulations (the so-called charter of the taxpayer) stipulates that, in case the tax admini­stration wants to issue an administrative fine, it has to inform the taxpayer be­forehand about the facts that constitute the violation of the applied legal regulations and of the motives that are taken into consideration to establish the amount of the fine.

Taking this specific obligation of motivation, formulated more stringently than by the Law on the Formal Motivation of Administrative Acts into consideration, it is accepted that an administrative fine has to be motivated on the basis of this specific legal ground [43]. The same applies to the decision to reject waving or reducing an administrative fine [44].

5. Tax increase [45]

After a period of vagueness about the formal motivation of a tax increase (with at the head the mainly French-speaking jurisprudence, which did not consider the establishment of an assessment (ex officio) or a notification of change pertaining a tax increase as being subject to the Law on the Formal Motivation of Administrative Acts) [46], the circular on the establishment of theincome tax clarified that from now onwards the taxpayer has to be infor­med, in case of the application of tax increases, on the applicable legal regulations and, the motivation on the applicable tax increases (mentioning the nature, the gravity and the class of the violation). This information has to be provided in the notification of change or the notification of assessment ex officio, or, failing that, by letter [47].

The majority of the jurisprudence followed this administrative directive and also considered the Law on the Formal Motivation of Administrative Acts to be applicable to the decision on a tax increase [48]. Article 109 of the Law dated 4 August 1986 has only been considered as applicable to admini­strative fines.

The Court of Cassation ultimately asked the (then) Court of Arbitration a preliminary question, namely whether or not article 109 of the Law dated 4 August 1986 – interpreted in the sense that only the administrative fines foreseen in article 445 ITC92 have to be motivated and not the tax increases – violates the articles 10 and 11 of the Constitution [49]. The Court of Arbitration concluded that there was a violation [50]. In a circular, the fiscal administration submitted to this judgement [51]. The same goes for the jurisprudence [52]. This means that the Law on the Formal Motivation of Administrative Acts is not applicable any longer, but that a specific fiscal legal ground is applicable to a tax increase.

6. Several decisions at the request of the taxpayer

The decisions below have been taken at the request of the taxpayer. Almost all of them are included in the fiscal circulars [53] and have been confirmed (as a rule) by the doctrine as administrative acts on which the Law on the Formal Motivation of Administrative Acts is applicable [54]:

a) decision whether or not to grant extensions of the declaration[55];

b) decision about the departure from the obligation to keep books and records at the legally prescribed place[56];

c) decision whether or not to extend the answer deadline of a request for information, a notification of change or an assessmentex officio;

d) decision not to respect the waiting periods[57];

e) refusal of exemptionex officio[58];

f) advance decision in tax matters[59].

The Service Advance Decisions in tax matters (the so-called Advance Tax Ruling Service) gives an advance tax ruling at the request of the taxpayer about how the tax law will be applied to a special situation or operation – which has not had consequences yet at the fiscal level. Insofar this decision qualifies as an individual unilateral administrative legal act that aims at legal consequences, a so-called advance tax ruling is an administrative act as intended by the Law on the Formal Motivation of Administrative Acts [60].

In all respect, the decision of refusing to deliver an advance tax ruling has to be motivated as individual unilateral legal act as intended by the Law on the Formal Motivation of Administrative Acts. The so-called advices of the Advance Tax Ruling Service, which have no individual import, do not fall under the application of the Law on the Formal Motivation of Administrative Acts [61].

2.3.1.2. Collection of the income taxes

Earlier in this text, we discussed the case where the collector grants payment facilities, on which the Law on the Formal Motivation of Administrative Acts is not considered to be applicable [62].

The following legal tax acts are generally accepted as being subject to the application domain of the aforementioned Law [63]:

1. the decision of the tax administration director whether or not to postpone the collection in“special cases” [64];

2. the decision of the collector to declare the assessed taxes immediately collectable whenever the rights of the Treasury are endangered[65];

3. the decision of the tax administration director whether or not to grant an unlimited postponement of collection[66];

4. the decision of the tax administration director whether or not to grant the exoneration of late payment interests[67];

5. the decision of the Collection Director to grant moratorium interests[68];

6. the decision of the regional director by which he demands a business security or a personal guarantee[69];

7. the establishment of the legal mortgage by the collector (when the rights of the Treasury are endangered); as well as his decision about the request to lift a mortgage[70];

8. the decision of the collector to use the sums which have to be reimbur­sed to him in favour of the taxpayer[71];

9. the decision of the collector whether or not to authorize payment facili­ties.

2.3.2. Indirect taxes

The indirect taxes cover, among other things, the VAT, the registration and inheritance taxes, and the customs and excise duties. Furthermore, there are indirect taxes at the regional level, such as the vacancy charge in the Flanders. As far as the indirect taxes are concerned, the individual unilateral administrative legal acts, which entail legal consequences, have to be motivated as prescribed by the Law on the Formal Motivation of Administrative Acts or by a specific rule.

Beside, among other things, the regional director’s decision of refusal to grant the exoneration of late payment interests [72] and his decision whether or not to grant the remission of late payment interests [73], other examples of decisions of the tax administration, which should be motivated formally, strike the eye.

2.3.2.1. Distress warrant

In the course of the last ten years, a lot of ink has been spilled on the motivation of a distress warrant in the indirect taxes. The discussion was very lively with regard to the scope of the obligation of motivation. We discuss this in greater detail in section 2 [74].

Similar jurisprudence can be found on VAT, registration and inheritance taxes, and customs and excise duties.

A distress warrant with regard to indirect taxes is the first act of prosecution for the collection of the tax, the interests, the fines, and accessories [75]. It closes the informal administrative procedure [76]. But the distress warrant is also the first act of establishment of the tax debt [77]. For the Court of Cassation, the motivation of the distress warrant – which entails legal consequen­ces through the establishment of the tax debt – is one of the validity requirements [78]. The doctrine and the jurisprudence generally agree that a distress warrant falls within the scope of the Law on the Formal Motivation of Administrative Acts [79].

2.3.2.2. Notification upon a request for control estimate

According to the Court of Cassation, the request for control estimate with regard to registration duties [80] brings about legal consequences (the purpose is to establish the tax). As a consequence, the notification represents a legal act that has to be motivated within the meaning of Law on the Motivation of Administrative Acts [81].

The Court of Appeal of Liège adds however that it is not in the best interest of the taxpayer to invoke a formal violation of the obligation of motivation of the individual legal act, when he has been informed by another way of the motives in the administrative act [82].

2.3.2.3. Consignment

The VAT-collector has the possibility, in case the taxpayer appeals against a judgement that has rejected his claim, to request the latter to give the amounts due totally or partially in consignment [83]. The Court of Appeal of Antwerp judged that an administrative act is concerned here as intended by the Law on the Formal Motivation of Administrative Acts [84]. It will have to be motivated that a case of fraud is concerned, that it constitutes a dilatory appeal, and that the financial situation of the taxpayer makes the consignment possible.

On the basis of the specific law article, the collector has to take into account the real data of the case, he has to consider the financial situation of the debtor and inform him about the request for consignment [85].

2.3.2.4. Decision of refusal to grant payment facilities

The Court of First Instance of Namur decided that the right of the administration – in the person of the minister of Finance – to conclude settle­ment agreements with the taxpayers [86] equally entails the right to conclude with the taxpayers an agreement about payment terms. The decision which rejects a proposal from the taxpayer for the payment of a VAT debt has to be motivated formally. This obligation rests on each administrative act as intended by the Law on the Motivation of Administrative Acts [87].

2.3.2.5. Flemish vacancy charge

On the basis of the Decree dated 22 December 1995, the administration establishes the vacancy in a motivated administrative act. The motivation of the decision to include a building/house in the inventory aims at legal consequences according to the Court of Cassation, because it is the cause of the material tax [88]. Hence, the decision is an administrative act as intended by the Law on the Motivation of Administrative Acts. According to the Court of Appeal of Brussels, the motivation has to make it possible to verify which indications have been applied to the building, whether the correct indications (in accordance with the qualification building or house) have been used and, in the affirmative, to deliver evidence to the contrary thereof [89].

The assessment notice for the vacancy charge has to be motivated as well. On the basis of article 39, § 1, fourth paragraph of the decree dated 22 December 1995, the assessment notice must – under penalty of invalidity – mention the assessment year, the tax base, the amount to be paid, the calculation method, the date of payment, and the formalities that have to be respected. According to the Court of Cassation, the mandatory mention of the calculation method is meant to inform the taxpayer completely and to give him the possibility to defend his rights by disputing the assessment notice concretely and directly [90]. We believe that this motivation is at least as stringent as the one on the basis of the Law on the Formal Motivation of Admini­strative Acts, as a result of which the specific disposition can be considered as the basis.

2.4. Exceptions

In the context of the motivation of fiscal decisions, the exceptions to the formal obligation of motivation can sometimes be applied, in particular the respect of the private life and the oath of secrecy [91]. Indeed, tension exists bet­ween the professional confidentiality of the administration [92] and its formal obligation of motivation, as can be demonstrated by the application of “taxa­tion by comparison” [93].

In the absence of probative data, the profit or the earnings of a taxpayer can be determined according to the normal profit or earnings of at least three similar taxpayers [94]. The identity of the points of comparison does not have to be mentioned, but it has to be motivated on which basis the declared data are replaced by others [95], why the comparison method is applied, why all conditions to that end have been fulfilled, and finally, the description of the profit or earnings of the comparison points and their normal respectively similar character [96]. When the taxation procedure fits in an assessment ex officio, it should also be motivated in this way [97].

3. Scope of the formal obligation of motivation

3.1. Bound or discretionary competence

In tax matters, the administration exercises often a purely bound competence. Seeing that the formal obligation of motivation is lighter in case of bound competences [98], it can be sufficient, then, to mention the legal basis and the actual situation, which elicits the application of the tax rule. When exercising a discretionary competence, the formal obligation of motivation will require a more detailed motivation.

3.1.1. Decisions at the request of the taxpayer

When the taxpayer uses the possibility offered by the regulations to obtain a certain departure from the normal procedure, the rejection of his request will have to contain the legally acceptable motives why his request cannot be acted upon. E.g., this is the case with the aforementioned decisions such as the rejection of the request for the extension of the declaration deadline, for departure from the obligation of keeping books and records, for the removal of a legal mortgage, and to obtain payment facilities. The same is valid, among other things, for the refusal to extend a preliminary decision in tax matters.

In case of the rejection of a request for extension on account of legitimate reasons of the deadline to reply to a request for information, a notice of change or an assessment ex officio, it must be motivated why the reasons quoted by the taxpayer are not legitimate. Generally accepted as legitimate reasons are the fact that a longer period is necessary to provide the requested information or certain supporting documents, the serious illness or prolon­ged absence of the taxpayer, or other cases of force majeure [99].

In special cases, the tax administration director can postpone the collection of the taxes, when an objection has been filed. The notion “in special cases” is not further defined and provides a very large marge of appreciation. The appreciation of a “special case” must be motivated in detail and has to take the actual data of the case into account. The notion “special case” may however not be limited to circumstances that influence the collection of the taxes such as a lesser degree of wealth or a lack of prosperity [100].

In this respect, the unlimited postponement of the collection of direct taxes deserves to be mentioned as well, in which case the tax director permanently renounces to the collection of the taxes established at the taxpayer’s expense in the measure and under the conditions defined by the tax director, as an extraordinary beneficial treatment [101]. According to the phrasing of art. 413 quinquiesIRC92, the director passes judgement about the taxpayer’s request by means of a motivated decision, to be delivered within 6 months after receipt of the request. As remarked earlier, this decision falls within the scope of the Law on the Motivation of Administrative Acts [102]. Within one month following the notification, the director’s decision can be subjected to an appeal to an ad hoccommission, which passes judgement within three months after receipt of the appeal. By virtue of article 413 quinquies, final paragraph ITC92, the latter decision is not open to appeal. It is accepted, however, that the motivations of the director as well as that of the commission can be subjected to a nullification appeal to the department administrative jurisprudence of the Council of State. According to some, the control by the Council of State is currently limited to the examination of the obligation of motivation [103]. We believe, however, that the disputes about the application of the Law on the Formal Motivation of Administrative Acts to individual unilateral fiscal legal acts fall under the competence of the fiscal section of the Courts of First Instance [104].

3.1.2. Decision at the initiative of the administration

In other cases, the administration uses certain possibilities offered by the law at its own initiative. The administration has to motivate satisfactorily why the conditions for the application of this legal rule are met or why this particular decision is taken.

Consequently, measures can be taken when the rights of the Treasury are endangered, such as declaring as immediately payable the assessed taxes or the registration of a legal mortgage. In each instance, it will be necessary to motivate in concreto why the rights of the Treasury are endangered.

The motivation of a notice of change in the sense of art. 346 ITC92 or an assessment ex officio must provide the taxpayer with sufficient clarity about the figures, the facts and the circumstances upon which the assessment is based. The motivation has to mention three elements in particular, namely the reasons why the procedure is used, the amount of the income and the other information upon which the assessment will rest, as well as the way in which these income and data have been established. A notice of change that only mentions a figure, such as the amount of the benefits that have to be added to the income of the director of a company, does not meet the requi­rements of the formal obligation of motivation, because there is no motivation for the addition of this amount to the taxable basis, nor for the establi­shment of the amount [105].

Tax increases and administrative fines are administrative sanctions which in certain cases can be inflicted. The motivation of the decision should not only refer to the legal rule according to which an administrative sanction is inflicted, but also mention clearly which is the nature, the gravity, and the class of the violation. A tax increase which is not formally motivated violates the Law on the Formal Motivation of Administrative Acts and more specifically art. 9 of the Law dated 4 August 1986.

When the regional director decides about the establishment of a business security or demands a personal guarantee from the taxpayer, when the market value of his properties in Belgium is not sufficient to cover the income taxes expected to be due for one year, the formal obligation of motivation implies among other things that the decision should explicitly mention the amount that the taxpayer will be expected to owe.

3.2. Motivation by reference: satisfactory or not?

As discussed in the generalities, the motivation must be explicit and adequate in order to fulfil the requirements of the Law on the Formal Motivation of Administrative Acts This means that the act contains the legal and actual considerations which are at the basis of the decision. As already poin­ted out above [106], the jurisprudence is extensive mainly with respect to the distress warrant in the indirect taxes about the scope of the formal obligation of motivation.

The tax administration must adequately motivate the distress warrant with regard to indirect taxes in fact and in law in the distress warrant. The primary question in the jurisprudence is to which extent the motivation for the distress warrant should be included in the distress warrant itself. Is it sufficient that the motivation is included in the minutes that are signified with the distress warrant? Is it possible to include the motivation in minutes that are not signified with the distress warrant? Or even in documents or letters previously communicated or kept at the administration’s disposal?

According to the Court of Cassation, an adequate motivation of the decision implies that the decision is sufficiently supported by the motivation and that this motivation is in proportion to the importance of the decision taken and the nature of the competence of the administration [107]. A motivation is adequate when it allows to understand the reasons of the decision which concerns the taxpayer. The adequate motivation will depend on the circumstances of the case, especially on the previous actual knowledge whichthe addressee has about the case.

A motivation by reference in a distress warrant is thus possible, even to the administrative file which the taxpayer has consulted before the signification of the distress warrant. The purpose of the formal motivation is attai­ned, so that, in this case, the non-respect of the obligation of formal motivation cannot lead to disregarding of the administrative act [108]. It is not in the interest of the taxpayer to invoke a violation of the formal obligation of motivation (there is no detriment of interests). The notification of the taxable fact, the scope and the cause of the fiscal debt are sufficient [109].

This jurisprudence has been greeted negatively by most authors [110]. They suppose that a detailed description of the means of giving or obtaining evidence that the administration has at its disposal is required for a proper ade­quate motivation. Furthermore, the scope of the claim requires a detailed motivation. However, in one case the Court of Cassation considered a very slight motivation for the distress warrant adequate: «As it appeared from an administrative investigation, husband and wife were holders of a KB-Lux account, with a balance amounting to 889, 233, 133.50 BEF on 2 October 1989».

Furthermore, according to the Court of Cassation the Law on the Formal Motivation of Administrative Acts does not prevent that after the formulation of the distress warrant by the administration more new Legal arguments and actual data be produced. These can only serve as a support of what has already been established and mentioned in the distress warrant [111], however.

4. Sanction as a result of the violation of the Law on the Formal Motivation of Administrative Acts

It is held as a general rule that the formal motivation is a substantial formal requirement which, in case of violation, can lead to the nullity of the admini­strative decision. However, the jurisprudence accepts that the nullity of an unmotivated administrative act does not follow automatically. The Council of State as well as the regular courts and tribunals consider that there can be no question of nullity when the interest of the person concerned are not prejudiced, either because he was informed about the motives of the admini­stration through other sources, or when the lack of motivation concerns su­perfluous motives [112]. In case the taxpayer suspects that the tax administration has ignored the Law dated 29 July 1991 when posing an administrative act, he can oppose to this administrative act. In the present contribution we do not examine the redress which can be obtained in case of non-respect of the obligation of motivation any further, the form of which can vary in function of the individual fiscal administrative act that is contested [113].

The protest against an administrative fiscal decision which is not adequately motivated as intended by the Law on the Formal Motivation of Ad­ministrative Acts must, according to certain jurisprudence, be considered as a dispute with regard to the application of the Law dated 29 July 1991 about the formal motivation of administrative acts [114]. In this case, a procedure with the Council of State is appropriate.

According to the Council of State, the legislator’s purpose at the time of the introduction of the new procedure rules of 1999 was to make the Council of State competent for normative legal tax acts only, while all other disputes should be brought under the competence of the judiciary. As a consequen­ce, this particularly exclusive competence of the Court of First Instance with respect to disputes about individual fiscal Legal acts excludes the general residual competence of the Council of State [115]. As a result, the Council of State refers to the Courts of First Instance [116] for the judgement of all individual legal tax acts.

We think that the protest against an administrative fiscal decision which is not adequately motivated as prescribed by the Law on the Formal Motivation of Administrative Acts, is to be regarded as a dispute on the application of tax law, as referred to in article 569, first paragraph, 32° Jud.C. juncto art. 632 Jud.C. [117]. In our view, as soon as a dispute relates to a fiscal disposition, which is an individual unilateral legal tax act, it constitutes a dispute about the application of tax law. To judge otherwise would mean that the competent judicial authority (the Council of State resp. the Court of First Instance) would be determined on the basis of the invoked legal ground (the Law on the Formal Motivation of Administrative Acts or the ITC92). It is the legislator’s intention to give the new fiscal procedure rules a large application range, and, as a consequence, to make the fiscal Judge competent whenever the nullification of a disposition of the tax administration is claimed.

5. Conclusion

Before the Law on the Formal Motivation of Administrative Acts of 1991, no general rule for the tax administration on the basis of which it had to formally motivate its decisions existed in Belgium. The motives in the individual fiscal legal acts had to be mentioned only exceptionally.

Since the legal introduction of the formal obligation of motivation, the number of applications in tax matters has been enormous. The jurisprudence and the doctrine even confirm the importance of the formal motivation of individual fiscal legal acts on a daily basis. It can be stated that the Law on the Formal Motivation of Administrative Acts contributes to a more careful decision making process by the Belgian tax administration. The well-informed taxpayer can only benefit from it.

Note

[1] Law of 29 July 1991 on the explicit motivation of administration acts, Belgian Official Gazette, 12 September 1991.

[2] Law of 11 April 1994 on the public nature of the administration, Belgian Official Gazette ,30 June 1994.

[3] Law of 22 March 1995 for the establishment of federal ombudsmen, Belgian Official Gazette, 7 April 1995.

[4] PEETERS, Preventieve rechtsbescherming tegen het fiscaal bestuur, in Algemeen Fiscaal Tijdschrift (AFT), 1998, pp. 189-227. OPDEBEEK-COOLSAET,Formele motivering van bestuurshandelingen, in Administratieve Rechtsbibliotheek, Bruges, die Keure, 1999, pp. 6-9, no. 5-8.

[5] OPDEBEEK-COOLSAET, De formele motivering van bestuurshandelingen. Een beknopte gids, Bruges, die Keure, 1999, p. 16.

[6] JUSTE, La motivation formelle des actes administratifs et ses implications en droit fiscal (loi du 29 juillet 1991), in Revue Générale de Fiscalité, 1994, p. 236; VAN ORSHOVEN, De uitdrukkelijke motivering van (fiscale) bestuurshandelingen, in Fiscale Koerier, 1991, p. 508. Cf. Parl. St. Senaat 1988-1992 (B.Z. 1988), p. 14, no. 215/3.

[7] Circ. Nr. Ci. R.14/438.580 dated 14 February 1992 on the application of the Law dated 29 July 1991 on the explicit motivation of administrative acts in the collection sphere, Bulletin der Belastingen, 1992, pp. 1136-1145; Circ. Nr. Ci.RH.81/439.496 dated 27 July 1992 on the explicit motivation of administrative acts in the sphere of the assessment of the taxes, Bulletin der Belastingen, 1992, pp. 2187-2193.

[8] In accordance with article 569, paragraph 1, 32° Jud.C., the fiscal sections of the Courts of First Instance are competent for disputes with regard to the application of tax law.

[9] E.g. art. 346 in fine and 352 bis ITC92 (Law dated 30 June 2000) and art. 92 C.VAT.

[10] Circ. Nr. Ci. R.14/438.580 dated 14 February 1992 on the application of the Law dated 29 July 1991 with regard to the explicit motivation of administrative acts in the collection sphere, Bulletin der Belastingen, 1992, p. 1137, no. 2; Circ. Nr. Ci.RH.81/439.496 dated 27 July 1992 on the application of the Law dated 29 July 1991 with regard to the explicit motivation of administrative acts in the sphere of the assessment of the taxes, Bulletin der Belastingen, 1992, p. 2188, no. 2.

[11] Art. 375 § 1 ITC92, as modified by art. 32 of the Law dated 15 March 1999.

[12] BEHAEGHE, De nieuwe fiscale procedure, in Fiscale Koerier, 1999, p. 373; X., Bezwaar­procedure: administratief karakter ook voor verleden, in Fiscoloog,2000, p. 5, no. 778.

[13] STEVENART MEUÙS-VAN BRUSTEM, La motivation formelle en matière fiscale: des actes préparatoires à l’établissement de l’impôt au recouvrement de l’impôt, in Revue générale de fisca­lité , 2005/1, p. 26, no. 47.

[14] Art. 219 AWDA, VAN BELLE, De hervorming van de fiscale procedure inzake douane en accijnzen, in Algemeen Fiscaal Tijdschrift, 2000, p. 425.

[15] BEHAEGHE, op. cit., p. 371; X., Procedure lokale belastingen: toch geen uitstel, in Fiscoloog, 1999, p. 1, no. 706. The matter is regulated by Law dated 24 December 1996 and the RD dated 12 April 1999 for the definition of the procedure for the governor or for the bench of Mayor and Aldermen with respect to notices of objection against a provincial or local tax. For the Flemish Region, this regulation has been modified by Decree dated 30 May 2008, BS 4 July 2008 (cf. also circular letter BB 2008/07 dated 18 July 2008, BS 22 August 2008) which regulates the assessment, collection and dispute procedure for taxes establi­shed by the provinces and the local authorities in the Flemish Region. Art. 9 of this Decree regulates the objection procedure to the deputation (instead of the governor (Royal Decree 12 April 1999) for the province taxes and to the bench of Mayor and Aldermen for the local taxes. For the Walloon Region, the appeal procedure is regulated by art. L3321-9 Code of the local democracy and the decentralisation, Belgian Official Gazette, 12 August 2004 and Belgian Official Gazette, 22 March 2005.

[16] Question no. 684 (Daerden) dated 15 March 1994, Vr. en Antw. Kamer, Bulletin der Belastingen, p. 2791, no. 742; Question no. 126 (de Clippele) dated 15 June 1992, Vr. en Antw. Kamer, G.Z. 1993-1994, p. 11727, no. 112. Also see Circ. Nr. Ci. R.14/438.580 dated 14 February 1992 on the application of the Law dated 29 July 1991 with regard to the explicit motivation of administrative acts in the collection sphere, Bulletin der Belastingen, 1992, p. 1139; X., Moet weigering betalingsfaciliteiten, enz., niet uitdrukkelijk worden gemotiveerd?, in Fiskoloog, 1992, p. 4, no. 374.

[17] Court Leuven 2 April 2004, www.monkey.be.

[18] Cass, 24 April 2008, Fiscale Koerier, 2008, p. 672, no. 16, note X, www.cass.beRABG, 2008, p. 1193, no. 18, note VANDEN BRANDEN, Revue générale du contentieux fiscal, 2008, p. 307, no. 4, note VAN BRUSTEM and Tijdschrift voor Fiscaal Recht, 2008, p. 924, no. 349, note LOYENS.

[19] DELANOTE, Schuld en executie, Bruges, Die Keure, 2010, pp. 324-325.

[20] DELANOTE, ibidem.

[21] The these that the granting of payment facilities must indeed be motivated, has already earlier been defended by: GHYSELS, La motivation formelle des actes de l’administra­tion des contributions directes et de la loi 29 juillet 1991, in Revue Générale de Fiscalité, 1993, p. 21; JUSTE, op. cit., pp. 237-238; PEETERS, op. cit., pp. 218-219; STEVENART MEEÙS-VAN BRUSTEM, op. cit., p. 43, no. 78; VAN ORSHOVEN, De uitdrukkelijke motivering van (fiscale) bestu­urshandelingen, cit., p. 508.

[22] Circ. Nr. Ci. R.14/438.580 dated 14 February 1992 on the application of the Law dated 29 July 1991 with regard to the explicit motivation of administrative acts in the collection sphere, Bulletin der Belastingen, 1992, pp. 1136-1145; Circ. Nr. Ci.RH.81/439.496 dated 27 July 1992 on the application of the Law dated 29 July 1991 with regard to the explicit motivation of administratieve acts in the sphere of the assessment of taxes, Bulletin der Belastingen, 1992, pp. 2187-2193.

[23] Brussels 7 November 1996, FJF, 1996, p. 515; Liège 4 March 1998, Fiscale Koerier, 1998, p. 244 with critical note DEFOOR; Liège 9 October 1998, FJF, 99/1; Liège 11 September 1998, FJF, 98/297; Liège 20 June 2001, FJF, no. 2002/1.

[24] VAN ORSHOVEN, Uitdrukkelijke motivering van (fiscale) bestuurshandelingen, cit., p. 508. Cf. also PEETERS, op. cit., p. 213, no. 62.

[25] Art. 569, paragraph 1, 32° Jud.C.

[26] Cf. infra, no. 41.

[27] Art. 435, par. 3 ITC92 and art. 434 ITC92; Circular no. Ci. R. 14/438.580, 14 Fe­bruary 1992, Bull. Bel., pp. 1142-1143, no. 715, no. 16 and 21. Contra: VAN HAEGENBORGH, De invordering van de inkomstenbelastingen en de Wet motivering bestuurshandelingen, in DIRIX-TAELMAN (eds.), Fiscaal executierecht, Antwerp, Intersentia, 2003, p. 371, no. 38.

[28] Circ. Nr. Ci. R.14/438.580 dated 14 February 1992 on the application of the Law dated 29 July 1991 with regard to the explicit motivation of administrative acts in the collection sphere, Bulletin der Belastingen, 1992, pp. 1143-44; PEETERS, op. cit., p. 219; X., Moet weigering betalingsfaciliteiten, cit., p. 5.

[29] Cass., 25 April 1997, FJF, no. 97/242; Ghent 17 April 1996, TGR, 1996, p. 161; Circ. Nr. Ci. R.14/438.580 dated 14 February 1992 on the application of the Law dated 29 July 1991 with regard to the explicit motivation of administrative acts in the collection sphere, Bulletin der Belastingen, 1992, p. 1144; PEETERS, op. cit., p. 219; X., Moet weigering betalingsfaciliteiten, cit., p. 5.

[30] Art. 353 ss. ITC92.

[31] See the definition of CLAEYS BOUUART cited in PEETERS, op. cit., p. 216, no. 76; PLETS, De vernietiging door het Arbitragehof van de geschillenprocedure inzake provincie en gemeentebelastingen, in T.Gem., 1998, p. 216; VAN ORSHOVEN, De uitdrukkelijke motivering van (fi­scale) bestuurshandelingen, cit., p. 508.

[32] DUBOIS, De verboden substitutie van motieven. Over de invloed van de wet Motivering Bestuurshandelingen op de geschillenprocedure inzake inkomstenbelastingen, in X., Recht zon­der omwegen. Fiscale opstellen aangeboden aan Prof. Dr. J. J. Couturier ter gelegenheid van zijn 75ste verjaardag, De Boeck & Larcier, Brussels, 1999, p. 317, no. 17.

[33] Perm. Dep. Antwerp 21 December 1995, RW, 1996-1997, p. 236. About the distinction between assessment register and assessment notice, see also/cf.: DELANOTE, op. cit., pp. 290-292, no. 306-307.

[34] Liège 20 June 2001, FJF 2002/1. Cf. supra, no. 7.

[35] Art. 346 ITC92.

[36] Art. 351 ITC92.

[37] According to the tax administration, the Finance minister, and some jurisprudence, both administrative acts are only a starting point of the discussions with the taxpayer and by no means aim at legal consequences: ComIT92 346/28-38 and Circ. Nr. Ci. RH. 81/439.496 dated 27 July 1992 on the application of the Law dated 29 July 1991 with regard to the explicit motivation of administrative acts in the sphere of the assessment of taxes, Bull. Bel., p. 2191, no. 719, no. 12; Question no. 144 dated 3 December 1999 (Leterme), Vr. en Antw. Kamer, 1999-2000, p. 3633; Cass., 26 October 1965, Pas., 1966, I, p. 276; Brussels, 7 November 1996, FJF, 1996, p. 515; Liège, 4 March 1998, Fiscale Koerier, 1998, p. 244 with critical note DEFOOR; Antwerp 16 June 1998, FJF,no. 98/286; Antwerp 22 September 1999, EJ, 1999, p. 27.

Contra: DASSESSE-MINNE, Droit fiscal – Principes généraux et impôts sur les revenu, Brussels, Bruylant, 2001, p. 203; GHYSELS, op. cit., pp. 18-20; JUSTE,op. cit., p. 236; PEETERS, op. cit., pp. 214-215; VAN ORSHOVEN, De uitdrukkelijke motivering van (fiscale) bestuurshandelingen, cit., p. 508; X., Worden alle bestuurshandelingen nu uitdrukkelijk gemotiveerd op fiscaal vlak?, in Algemeen Fiscaal Tijdschrift, 1994, 29/6.

[38] Cass., 10 November 2000, FJF, no. 2001/4, Fiscale Koerier, 2000, p. 539 with note DEFOOR; Cass., 2 February 2001, FJF, no. 2001/184. For an overview of which notifications of change and assessments ex officio were considered as (in)adequately motivated by the jurisprudence: STEVENART MEUÙS-VAN BRUSTEM, op. cit., p. 18 ss., no. 33 and 22 ss., no. 41.

[39] Antwerp 18 June 1996, FJF, no. 96/183; Antwerp 19 January 1999, FJF, no. 99/166; VAN STEENWINCKEL, Les avancées en matière de protection des droits des contribuables à la lumière de la jurisprudence récente, in Bulletin fiscal du Guide Fiscal Permanent, Brussels, Kluwer, 2000/09, p. 34.

[40] Art. 346 in fine and art. 352 bis ITC92, brought into force by the Law dated 30 June 2000 amending the general law in respect of customs and excise duties and the Income Tax Code 1992, Belgian Official Gazette, 12 August 2000. See also Circular no. AFZ/2000-1026 dated 21 September 2000 on the application of the general law with respect to cu­stoms and excise duties and the Income Tax Code 1992, Bulletin der Belastingen, no. 809, p. 2716. VANHAEGENBORGH, op. cit., p. 357, n. 13.

[41] Question no. 188 (Devlies) dated 18 December 2003, Vr. en Antw. Kamer, 2003-2004, pp. 4620-4622, no. 30; Question no. 905 (Hendrickx) dated 6 February 2002, Vr. en Antw. Kamer, 2002-2003, pp. 18118-18120, no. 143; Question no. 144 (Leterme) dated 3 December 1999, Vr. en Antw. Kamer, 1999-2000, p. 3633.

[42] Art. 445 ITC92.

[43] Circ. Nr. Ci.RH.81/439.496 dated 27 July 1992 on the application of the Law dated 29 July 1991 with regard to the explicit motivation of administrative acts in the sphere of the assessment of taxes, Bulletin der Belastingen, 1992, p. 2192; Antwerp, 25 February 1997, Fiscale Koerier, 1997, p. 284 with note DEFOOR; GHYSELS, op. cit., p. 21; JUSTE, op. cit., p. 238; PEETERS, op. cit., pp. 217-218 and 221; VAN ORSHOVEN, De uitdrukkelijke motivering van(fiscale) bestuurshandelingen, cit., pp. 508-509.

[44] Trib. Hasselt, 18 January 2006, Fiscale Koerier, 2006, p. 584.

[45] Art. 444 ITC92.

[46] Liège 11 September 1998, FJF, 98/297; Liège 9 October 1998, FJF, no. 99/1.

[47] Circ. Nr. Ci. RH. 81/439.496 dated 27 July 1992, Bulletin der Belastingen, p. 2192, no. 719, no. 16.

[48] Antwerp 21 November 2000, Tijdschrift voor Fiscaal Recht, 2001, p. 83; Trib. Namur, 10 November 2000, FJF, 2001/57; Antwerp 25 February 1997, FJF, no. 97/113 (a notification of change must carry the motivation of a tax increase); Antwerp 3 March 1998, FJF, no. 98/123; Ghent 8 December 1998, FJF,no. 99/152.

[49] Cass., 31 January 2000, Tijdschrift voor Fiscaal Recht, 2001, p. 79. See also QUINET, De motivering van de belastingverhoging: toepassing van de Wet van 29 juli 1991, in Tij­dsch­rift voor Fiscaal Recht, 2001, p. 51.

[50] Court of Arbitration 18 April 2001, no. 48/2001. See also STEVENART MEUÙS-VAN BRUSTEM, op. cit., p. 24, no. 44.

[51] Circ. Nr. Ci. RH. 81/548.628 dated 29 July 2002. See also Question no. 511 (Eerdekens) dated 21 November 2000, Vr. en Antw. Kamer, 2002-2003, pp. 19262-19263, no. 151.

[52] Trib. Liège, 2 October 2003, RGCF, 2003/4, p. 44 with note VERELST.

[53] Circ. Nr. Ci. R.14/438.580 dated 14 February 1992 on the applicatin of the Law dated 29 July 1991 with regard to the explicit motivation of administrative acts in the collection sphere, Bulletin der Belastingen, 1992; Circ. Nr. Ci.RH.81/439.496 dated 27 July 1992 on the applicatin of the Law dated 29 July 1991 with regard to the explicit motivation of administrative acts in the sphere of the assessment of taxes, Bulletin der Belastingen, 1992.

[54] See among others STEVENART MEUÙS-VAN BRUSTEM, op. cit., p. 15 ss.

[55] Art. 311 ITC92.

[56] Art. 315, par. 3, ITC92.

[57] Art. 346, par. 3 and art. 351, par. 3, ITC92.

[58] Art. 376 ITC92.

[59] Art. 20 Law 24 December 2002, Belgian Official Gazette, 31 December 2002.

[60] About the correct qualification of a preliminary decision of the SPD, however, opi­nions diverge. According to some, it constitues a unilateral administrative legal act, according to others, it forms a unilateral (competence) convention, and according to yet others, it is a “hybride convention” (for further details, see VAN DE VELDE, Afspraken met de fiscus: grenzen, de juridische kwalificatie en rechtsgevolgen, Brussels, Larcier, 2009, pp. 436-437, no. 610; WARSON, Invulling en precedentswaarde van rulings, Brussels, Larcier, 2011, pp. 113-116, no. 210-215). Only when the first qualification is followed, the the applicability of the Law on the Motivation of Administrative Acts ensues.

[61] Cf. WARSON, op. cit., pp. 17-18, no. 17 who takes a comparable point of view with regard to the “points of view” published by the SPD on its website, but which have been requalified as “advices”. The aforementioned advices are, according to the SPD, intended as general policies or directives (VAN DE VELDE,Afspraken met de fiscus, cit., p. 397, no. 549).

[62] Supra, no. 6.

[63] Circ. Nr. Ci. R.14/438.580 dated 14 February 1992 on the application of the Law dated 29 July 1991 with regard to the explicit motivation of administrative actis in the collection sphere, Bulletin der Belastingen, 1992; Circ. Nr. Ci.RH.81/439.496 dated 27 July 1992 on the application of the Law dated 29 July 1991 with regards to the explicit motivation of administrative acts in the sphere of the assessment of taxes, Bulletin der Belastingen, 1992; GHYSELS, op. cit.,p. 21; JUSTE, op. cit., p. 238; PEETERS, op. cit., p. 219; X., Moet weigering betalingsfaciliteiten, cit., p. 4; STEVENART MEEÙS-VAN BRUSTEM, op. cit., p. 31 e.v.; VAN HAEGENBORGH, op. cit., pp. 361-377, no. 20-46; VAN ORSHOVEN, De uitdrukkelijke motivering van (fiscale) bestuurshandelingen, cit., p. 508; X., Moet weigering betalingsfaciliteiten, cit., p. 5.

[64] Art. 410, par. 3, ITC92.

[65] Art. 413 ITC92.

[66] Art. 413 bis ss. ITC92 and art. 413 quinquies ITC92. See also infra, no. 30.

[67] Art. 417 ITC92; Liège 27 January 2010, FJF, no. 2011/171, ComIT 417/25; STEVENART MEUÙS-VAN BRUSTEM, op. cit., p. 38 ss.

[68] Art. 418-419 ITC92; Trib. Ghent, 20 June 2002, Algemeen Fiscaal Tijdschrift, 2002, 331; Request for explanation no. 5-902 (Winckel) dated 8 June 2011, Vr. en Antw. Senaat, 5-77COM.

[69] Art. 420 ITC92.

[70] Art. 425 ITC92.

[71] Art. 166 RD/ITC92. In the circular, is erroneously mentioned that art. 166 RD/ ITC92 determines that the appropriation of this money can happen “without formalities”. This regulation included in a RD is however not of a nature to be able to depart from the Law on the Formal Motivation of Administrative Acts: Circ. Nr. Ci. R.14/438.580 dated 14 February 1992 on the application of the Law dated 29 July 1991 with regard to the explicit motivation of administrative acts in the collection sphere, Bulletin der Belastingen, 1992, p. 1144.

[72] Art. 84 bis C.VAT; Antwerp 29 November 2005; ComIT no. 84 bis/36.

[73] Art. 141 bis C.Inh.

[74] Infra, no. 28.

[75] Art. 85 C.VAT, art. 47 C.Inh. On the notion of distress warrant and its double function (establishment of the tax and act which counts as an executable title in view of the collection of these taxes): see DELANOTE, op. cit., no. 298-301, pp. 282-286.

[76] X., Verzet tegen dwangbevel: dagvaarding of verzoekschrift?, in Fiscoloog, 2001, p. 3, no. 786.

[77] Ghent 15 March 1999, FJF, no. 99/146.

[78] Cass., 17 September 1998, FJF, no. 2001/28.

[79] Cass., 1° December 2005, Tijdschrift voor Fiscaal Recht, 2006, p. 717 with note KIEKENS; Cass., 17 November 2006, www.cass.be; Cass., 20 March 2008, www.cass.be; Cass., 22 May 2008, Tijdschrift voor Fiscaal Recht, 2009, p. 125 with note BRABANTS, Nieuwsbrief Registratierechten, 2008, with note STROBBE; Cass., 10 February 2012, published in FJF, 2012/181; Ghent 4 March 2003, Fiscale Koerier, 2003, p. 397 (on customs and excise duties); Brussels 21 April 2005, Fiscale Koerier, 2005, p. 448; Ghent 20 September 2005, no. FJF, 2006/86, TFR, 2006, p. 811 with note DE MEYERE; Ghent 4 October 2005, Jurisprudence Vandewinckele, G 05/14; Trib. Bruges, 7 November 2005, FJF, 2006/295; Ghent 12 September 2006, Newsletter Inheritance taxes 2006-2007, 7 with note GOOSSENS-VAN LAERE; Trib. Bruges, 4 February 2008, Jurisprudence Vandewinckele, BR1 08/0155; Trib. Ghent, 18 November 2008, Jurisprudence Vandewinckele, G1 08/1305; Trib. Bruges, 8 April 2009, Jurisprudence Vandewinckele, BR1 09/0588; Trib. Bruges, 26 May 2009, www. monkey.be; Antwerp 6 October 2009, Jurisprudence Vandewinckele, A 09/1345; Trib. Ghent, 19 January 2010, Jurisprudence Vandewinckele, G1 10/0118; Trib. Ghent, 26 January 2010, Jurisprudence Vandewinckele, G1 10/0123; CARDOEN, Bezint eer ge begint: over het belang van de afdoende motivering van het dwangbevel, in TEP, 2006/2, p. 120; DE MEYERE, Motivering dwangbevel in indirecte belastingen, note under Ghent 9 January 2002, in Tijdschrift voor Fiscaal Recht, 2002, p. 727; GHYSELEN, Dwangbevel moet uitdrukkelijk worden gemotiveerd, in Nieuwsbrief Registratierechten, 2006-2007, p. 19; VERMEULEN, Het dwangschrift als gevolg van artikel 47 W. Succ. en de uitdrukkelijke motiveringsplicht, in Nieuwsbrief Successierechten, 2009, p. 1; VANDENBERGH, De motivering van het dwangbevel inzake BTW, note under Trib. Antwerp, 8 June 1999, in Tijdschrift voor Fiscaal Recht, 1999, p. 970 and p. 973; VAN BRUSTEM, Que reste-t-il de l’obligation de motivation formelle de la contrainte en matière d’impôts indirects après les arrêts de la Cour de cassation des 20 mars et 22 mai 2008?, in Revue générale du contentieux fiscal, 2009/1; p. 5 ss.; BELLENS, De motiveringsvereiste betreffende het dwangbevel in de BTW, (note under Antwerp 5 December 2006 and Antwerp 19 December 2006), in Rechtspraak Antwerpen, Brussel, Gent, 2007/8, p. 553 ss.; VAN STEENWINCKEL, op. cit., p. 42.

[80] Art. 189 ss. C.Reg. See also art. 111 C.Inh. and art. 59 § 2 C.VAT.

[81] Cass., 14 December 2001, FJF, no. 2003/25, Trib. Huy, 14 June 2000, FJF, no. 2000/234. VAN HAEGENBORGH, op. cit., pp. 354-355, no. 12.

[82] Liège 22 June 2007, FJF, 2009, no. 2009/113. See also VAN BRUSTEM, La motivations formelle de la notification d’expertise de controle ne peut aboutir à imposer au receveur de procéder lui-même à l’expertise du bien, in Recueil général de l’enregistrement et du notariat, p332, no. 26.115; CULOT, Propos dur la motivation de la notification de l’expertise de controle en matière de droits d’enregistrement et de droits de succession, in Recueil général de l’enregistre­ment et du notariat, p. 189, no. 26.058.

[83] Art. 92, par. 1 C.VAT. De wet is een bekrachtiging van de visie van het Grondwettelijk Hof (Arbitragehof 18 November 1992, no. 73/92). See also art. 314 § 4 AWDA.

[84] Antwerp 17 April 2007, FJF, 2007/292; VANDEN BRANDEN, Enkel een solvabele bela­stingplichtige die een dilatoir beroep instelt, kan voorwerp uitmaken van verzoek tot consignatie, in Algemeen Fiscaal Tijdschrift, 2008, p. 24; VAN ORSHOVEN, Consignatie of geen consignatie? That’s the question. Oefeningen in administratief (proces)recht bij BTW-geschillen, in Tijdsch­rift voor Fiscaal Recht, 1994, p. 54, no. 8.

[85] BEHAEGHE, op. cit., p. 440.

[86] Art. 84, par. 2, C.VAT.

[87] Trib. Namur, 10 October 2007, FJF, 2008/236.

[88] Cass., 10 June 2010, FJF, no. 2011/4.

[89] Brussels 4 April 2009, FJF, no. 2010/59.

[90] Cass., 19 January 2007, www.cass.be.

[91] Supra, no. 2.

[92] Art. 337 ITC92.

[93] Art. 342 ITC92; BRONSELAER, Knelpunten inzake taxatie bij vergelijking, in Algemeen Fiscaal Tijdschrift, 2006, pp. 11-13, no. 26-27. See also art. 471 ITC92 for the establishment of a CI by comparison, as well as the communication ex officio of the sales prices which served as point of comparison for a control valuation with respect to indirect taxes. Question no. 1058 (Ghesquière) dated 29 April 1994, Vr. en Antw. Kamer G.Z. 1993-1994, pp. 12269-12270.

[94] Art. 346, par. 2, ITC92.

[95] Art. 346, par. 1, ITC92.

[96] Liège 29 April 1998, FJF, no. 98/173.

[97] Antwerp 12 April 1999, FJF, no. 99/235.

[98] Supra, no. 2.

[99] Circ. Nr. Ci.RH.81/439.496 dated 27 July 1992 on the application of the Law dated 29 July 1991 with regard to the explicit motivation of administrative acts in the sphere of the assessment of taxes, Bulletin der Belastingen, 1992, pp. 2190-2191; GHYSELS, op. cit., p. 22; PEETERS, op. cit., p. 214.

[100] C.of St., N.V. Jacques Maniet S.I.D., no. 28.857, 18 November 1987; Circ. Nr. Ci. R.14/438.580 dated 14 February 1992 on the application of the Law dated 29 July 1991 with respect to the explicit motivation of administrative acts in the collection sphere, Bulletin der Belastingen, 1992, pp. 1140-1141; PEETERS, op. cit., p. 220.

[101] Art. 413 bis up to 413 octies ITC92.

[102] See supra, no. 19.

[103] STEVENART MEUÙS-VAN BRUSTEM, op. cit., p. 34.

[104] Art. 569, par. 1, 32° Jud. C. See infra, no. 41.

[105] Antwerp 13 January 1994, Algemeen Fiscaal Tijdschrift, 1994, p. 4, no. 13.

[106] See footnote 81 and the references there.

[107] Cass., 22 May 2008, Tijdschrift voor Fiscaal Recht, 2009, p. 119 with note BRABANTS.

[108] Cass., 17 November 2006, www.cass.be: «In case it appears that the administrator has knowledge of the motives in another manner than through the formal motivation and this information has occcured in circumstances which have not endangered his right to defend himself against this act, the purpose of the formal motivation has be attained, so that, in that case, the non respect of the obligation of formal motivation can not lead to the non application of the admistrative act».

[109] Cass., 22 May 2008, Tijdschrift voor Fiscaal Recht, 2009, p. 125 with note BRABANTS.

[110] CARDOEN, op. cit., p. 120; DE MEYERE, op. cit., p. 727; VAN BRUSTEM, op. cit. Contra: BRABANTS, De motivering van een dwangbevel inzake successierechten, in Tijdschrift voor Fiscaal Recht, 2009, p. 125 ss.

[111] Cass., 10 February 2012, published in FJF, no. 2012/181; Cass., 1° December 2005, Tijdschrift voor Fiscaal Recht, 2006, p. 811 with note DEMEYERE.

[112] See general part; MAUS, De fiscale controle, Bruges, Die Keure, 2005, p. 776, no. 1394, with reference in footnote 3412 and 3413 to the jurisprudence mentioned.

[113] See about same a.o. STEVENART MEUÙS-VAN BRUSTEM, op. cit., p. 34, no. 1.

[114] MAUS, op. cit., p. 781, no. 1406; STEVENART MEUÙS-VAN BRUSTEM, op. cit., p. 34.

[115] C.of St. (De Jaeck), no. 84.317, 84.318 and 84.319 dated 22 December 1999, ref. 2.4.

[116] The Court of First Instance is not competent with regard to a dispute on the application of a tax law, only in case the law refers explicitly to the judicial power of the Council of State (art. 8 Law 11 April 1994 on the public character of the administration, which established that against a refusal of perusal in a case, an appeal has to been introduted with the Council of State). See also C.of St. (SA Semalu) no. 126.678, 19 December 2003.

[117] VAN DE VELDE, De ‘geschillen betreffende de toepassing van een belastingwet’ in de zin van artikel 569, eerste lid, 32° Ger.W. Een analyse van achtergrond en betekenis, in Algemeen Fiscaal Tijdschrift, 2005, p. 26, no. 46 ss.


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