CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 13 avril 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 12347/86                       by Ijzergieterij - en Machinefabriek                       J. Zimmer en Zonen B.V.                       against the Netherlands             The European Commission of Human Rights sitting in private on 13 April 1989, the following members being present:                 MM. S. TRECHSEL, Acting President                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   H.G. SCHERMERS                   H. DANELIUS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                  Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 1 May 1986 by Ijzergieterij - en Machinefabriek J. Zimmer en Zonen B.V. against the Netherlands and registered on 22 August 1986 under file No. 12347/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:     THE FACTS           The applicant is a company, having its seat at Leusden, the Netherlands.   It is represented in the proceedings before the Commission by Mr.   M. L. B. van der Lande, a tax consultant practising in Amsterdam.           The facts of the case, as they have been submitted by the applicant company, may be summarised as follows:           By letter of 10 March 1982 the Inspector of Turnover Taxes (Inspecteur der Omzetbelasting) imposed upon the applicant company an additional tax assessment (naheffingsaanslag) to the amount of 512,255 DFL.   In addition the company had to pay an increase imposed by way of a "fine" of 51,225 DFL.           On 4 May 1982 the tax consultant of the applicant company sent an unregistered letter to the Inspector of Turnover Taxes in which he objected to the tax assessment and the increase without presenting grounds.   By letter of 28 May 1982 the tax consultant explained the objection.           By letter of 23 March 1983 the Inspector of Turnover Taxes informed the applicant company of his decision to declare the objection inadmissible because it had not been received within two months after the date of the notification of the assessment as required under the General State Taxation Act (Algemene wet inzake rijksbelastingen).   It appeared that the letter of 4 May 1982 had not been received by the Inspector.           By letter of 27 April 1983 the applicant company requested the President of the Court of Appeal (Gerechtshof) of Amsterdam to grant an extension of the term within which the applicant company had to object to the tax assessment.   In his decision of 27 May 1983 the President rejected the request, considering, inter alia, that the fact that the objection had not been delivered, was the responsibility of the applicant company.           By letter of 13 May 1983, the applicant company appealed against the decision of the Inspector, to declare its objection inadmissible, to the Court of Appeal of Amsterdam.   It submitted that its objection had been sent in time, for which it adduced certain pieces of evidence.           In its decision of 7 December 1984 the Court of Appeal rejected the applicant's appeal.   It considered, inter alia, that the burden of proof that the objection had been lodged in time lay on the applicant company and that the adduced pieces of evidence were not sufficiently convincing that it had lodged the objection in time.           On 22 March 1985 the applicant company appealed against the decision of the Court of 7 December 1984 to the Supreme Court (Hoge Raad).   It submitted that the Court of Appeal had wrongly held that the applicant company had to prove that the Inspector of Turnover Taxes had received the objection.   In its decision of 6 November 1985 the Supreme Court rejected the appeal.     COMPLAINTS           1.   The applicant company complains that it had no access to a court in relation to the dispute concerning its additional tax assessment because of having exceeded time limits.   The question whether the time limit had been exceeded was decided by the Inspector of Turnover Taxes who is not an independent and impartial tribunal, being a representative of the State of the Netherlands that is one of the parties in the dispute.   The applicant submits that a tax assessment has a proprietary character.   It invokes Article 6 para. 1 of the Convention.           2.   The applicant company furthermore complains that it had no access to an independent court in the determination of a criminal charge against it.   It submits that the imposition of an increase, i.e. 51.225 DFL, must be considered to be a criminal   charge.            The applicant company complains that under the General State Taxation Act it has to prove its innocence.   Under this Act an additional assessment may be increased by a maximum of 100%.   If one objects to the additional assessment and the increase one must lodge an objection with the Inspector of Taxes.   In the present case no independent judge has decided on the guilt of the applicant company, but it nevertheless had to pay the increase.   That is considered by the applicant company to be a fine.            The applicant company complains that in respect of the increase in its tax assessment it did not enjoy sufficient legal safeguards such as a judicial investigation and trial.           The applicant company invokes Article 6 paras. 1, 2 and 3 of the Convention.   THE LAW           1.   The applicant company complains that it has no access to a court in relation to its additional tax assessment.   It has invoked Article 6 para. 1 (Art. 6-1) of the Convention.           The Commission recalls that it has consistently held that Article 6 para. 1 (Art. 6-1) of the Convention does not apply to proceedings relating to tax assessments (No. 8903/80, Dec. 8.7.80, D.R. 21 p. 246; No. 9908/82, Dec. 4.5.83, D.R. 32 p. 266).           It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           2.   The applicant company complains that it had no access to a court concerning the imposition of the increase in its tax assessment, which amounts to a criminal charge.   It furthermore complains that, in regard to this criminal charge, it had to prove its innocence and did not enjoy sufficient legal safeguards.   It has invoked Article 6 paras. 1, 2 and 3 (Art. 6-1, 6-2, 6-3) of the Convention.               However, the Commission notes that, under Dutch law, a system for objecting to an additional tax assessment exists, which would have allowed the applicant company a hearing in court, if it had brought its objections in time.           In these circumstances, the Commission finds that this complaint does not reveal the appearance of a violation of Article 6 (Art. 6) of the Convention.           It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.             For these reasons, the Commision           DECLARES THE APPLICATION INADMISSIBLE     Secretary to the Commission               President of the Commission               (H.C. KRÜGER)                               (C.A. NØRGAARD)