For example, if you want to file your payroll tax return these days, you're required to use eHerkenning. But what if you don't? What did the courts recently decide on this, and what can you do with it? Digitalization also means that anyone who wants to file their payroll tax return these days is required to use eHerkenning. But what if you refuse to file this way?
eRecognition
eHerkenning is a secure digital communication tool that can now be used to communicate with several hundred government agencies. The Dutch Tax and Customs Administration also uses it for filing corporate tax returns and payroll tax returns. However, it is not free to use, and eHerkenning must be purchased from a commercial provider.
Pay for tax return?
Your colleague believes filing a tax return should be free. According to your colleague, there's no legal basis for the mandatory filing of payroll tax returns using eHerkenning. Therefore, he didn't file a tax return in 2020. It should have been received by September 30th of that year, and so he was promptly issued a supplementary assessment. Therefore, he went to court.
No legal basis
The judges determined that your colleague could only file payroll tax returns in 2020 using eHerkenning. Consequently, he was no longer able to do so using a password and login name. According to the judges, your colleague did intend to file, but this was not possible without eHerkenning. The judges then concluded that the government does not currently have the option to mandate the use of eHerkenning. The reason for this is that there is no legal basis (ECLI:NL:RBGEL:2022:394).
Privacy first
The legal basis for the use of eHerkenning will have to stem from the Digital Government Act. However, the bill for this has not yet taken effect. Its implementation has been delayed because the Senate deemed the privacy protection insufficient. Therefore, the bill must be amended, after which it must again be approved by the House of Representatives and then the Senate. This could take several months, and despite the fact that, according to the government itself, the earliest possible implementation date is July 1st of this year, it is doubtful whether this is feasible.
eHerkenning cost reimbursement.
In their ruling, the judges also addressed the possibility of receiving temporary compensation for the costs of eHerkenning. However, the judges ruled that the existence of this compensation is irrelevant to mandatory use.
Consequences of the ruling for you?
The consequence of the ruling is that the tax authorities cannot impose additional assessments on companies that fail to file payroll tax returns due to a lack of eHerkenning. If this does happen, it can be reversed through the courts. However, it should be noted that the ruling can still be appealed to a higher court and is therefore not yet final. It is therefore risky, to say the least, to blindly follow your colleague and not file a return in similar cases. However, you can successfully challenge an already imposed additional assessment through the courts. You can also pay the tax owed if you know the amount. In that case, you cannot be fined for doing so.
The court ruled that there is no legal basis for mandatory filing of payroll tax returns via eHerkenning. However, this ruling is not yet final (appeal pending), so it remains to be seen whether it is wise to omit filing for this reason. You can, however, challenge an already imposed additional assessment for the same reason.
