Netherlands

Abstract

The imposition of taxes is founded on the idea that the legislature is constitutionally authorized to disregard ownership rights. However, the principle of a state under the rule of law prevent the imposition of taxes being solely a matter of government politics and wholly within the sphere of legislative freedom. The rule of law aims at protection against arbitrary interferences and use of power. The imposition of taxes is an exercise of power with an inherent risk of abuse of power. Distribution of power according the principle of separation of powers is an important instrument to protect taxpayers against arbitrary interferences and abuse of power.

Checks and balances are a complement to the distribution of power among the branches or powers of government – legislative, executive, and judicial. Checks and balances control power. With regard to lawmaking in the Netherlands, the democratically legitimized legislature gains priority. Because of the principle of legality, tax laws are the focal point for tax collection and the adjudication of conflicts with respect to tax collection. However, the tax administration has a great influence on the actual content of tax law and sometimes seems to be the key player in tax matters. Tax law bears the stamp of the tax administration. Vagueness in tax legislation greatly contributes to this dominant part played by the tax administration with respect to the laws in force and their application. Sometimes this regards anti-avoidance rules to prevent tax avoidance or undesirable use of tax legislation. Here, the courts act as a countervailing power, though with a fairly limited impact. The tax legislator often counters case law which it deems unfavourable, mostly for budgetary reasons, by introducing ‘reparation legislation.’

Keywords: separation of powers, checks and balances, vagueness, open texture of law, indeterminacy, discretion, open norms, over- inclusiveness, under-inclusiveness, anti-avoidance rules, tax administration, influence of tax administration on tax legislation, regulation, administrative rules, courts