Rechtszekerheid en Aansprakelijkheid in het Familiaal Vermogensrecht (Legal Certainty and Liability in Family Property Law)
University of Leuven, Faculty of Law, Department of Private Law; Harvard Law School; University of Leuven, Faculty of Psychology; Tilburg Law School Department of Private Law and TISCO; Catholic University of Portugal (UCP) - Católica Global School of Law; University of Brussels (VUB/ULB) ; Greenille (Attorneys, Notaries and Tax Advisors; Brussels, Antwerp, Amsterdam, Rotterdam)
March 16, 2011
Rechtskundig Weekblad, No. 39, pp. 1657-1660, 2011
In this article I argue that legal certainty and security in an area of law may easily be disturbed by doctrinal articles that argue, not necessarily with much justification, for positions that are beneficial for the tax administration.
Indeed we have seen how the Belgian fiscal authorities have changed their position and analysis in several instances, based on a doctrinal minority view. This happened even in situations where such position was settled for many years and accepted by every one. Recently the administration even changed its position, thereby opposing a recent judgment of the Belgian Supreme Court (Cour de Cassation), based on the opinion of one single author. This demonstrates the enormous power of doctrine, if it is advantegeous for the tax authorities.
In the area of trusts and estates, one can attempt to build consistent arguments in analyzing the outdated Belgian rules of private law and construing them in a way that is fit for today's society and answers legitimate needs and concerns of citizens. One can on the other hand also stick to a very legistic and dogmatic 'dura lex sed lex' approach, ignoring any evolution in society.
My argument goes that any legal author bears a responsibility for what he is writing. Academics nor practitioners can claim to write without strings attached. They do not write in a vacuum but in the context of a dynamic social and legal reality.
The same goes for the editorial boards of law journals. One cannot publish whatever article, under the excuse of academic freedom, and then not take up the responsibility for what has been published. So if an author or a journal publishes an article that leads to a dramatic change in the legal or tax practice, eg to the full taxation over what was not taxable before, such author and journal bears the responsibility for such publication and its consequences.
Opposite viewpoints in the doctrine may confuse practitioners - in particular notaries public - who must guarantee legal certainty for their clients.
It is however not so difficult for practictioners to avoid any liability in the face of legal insecurity. They must simply fully inform their clients about the diverse opinions and analysis, assess for them the merits and value of each perspective, as well as the risks, and then assist the client in making a well informed decision.
I also argue that the solution for cooping with so much legal insecurity and diversity of opinions in doctrine may well be for quality professionals to cooperate and work together in order to make the best possible state of the art analysis of the current legal situation in a particular field.
Note: Downloadable document is in Dutch.
Number of Pages in PDF File: 4
Keywords: legal certainty, liability, trust and estates, family property law, inheritance taxes
JEL Classification: K11, K12, K34Accepted Paper Series
Date posted: September 16, 2011
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