Burden of proof

Whoever asserts a fact must prove it

Suppose you include a deductible item in your income tax return, such as mortgage interest. Or we argue that we cannot follow your income tax return, because we suspect that your income was higher than the income stated by you. Who should prove what in that case?

In tax matters, too, the following rule applies: 'whoever asserts a fact, must prove it'. This means that you have to prove any tax-reducing items, such as mortgage interest which is deducted from your income. And vice versa, that we have to prove that your income was higher than the income stated by you.

We will have to submit proper proof of our assertions. For we are obliged to perform our work thoroughly and carefully and to give good reasons for our decisions. For instance, we will not increase your income just because a higher income is plausible in your case because you live in a good area.

Normal division of the burden of proof

In many cases, it is sufficient if you make expenses and deductible items plausible. This is a lighter form of proof. For example, is your mortgage interest relief higher due to a loan for a refurbishment of your house? In that case, a copy of the invoice from the contractor will normally be sufficient if we ask for 'proof of the refurbishment'.

Sometimes, more serious proof is necessary. The so-called proper records of kilometres driven are a known example of this. You must be able to submit these in case of limited private use of the company car.

Reversal of the burden of proof

Have you not filed a tax return? And have we sent you an estimated assessment? If so, the burden of proof has been reversed. Are you objecting to the tax assessment? If so, you will have to convincingly demonstrate that your income is lower than what we have estimated. This is laid down by law.

Have you provided us with insufficient information in response to our questions about your tax return?
Or has the Tax Administration established errors in a company's administrative records?
In that case the Tax Administration may send you a decision requiring information. This means that you will be given a final opportunity to answer our questions or to rectify the errors in your administrative records. You can also lodge an appeal against this decision requiring information.

Once the decision requiring information has been finalised (the decision requiring information is no longer open to appeal) the burden of proof will be reversed if you lodge an objection to the corrected tax return.

Division of the burden of proof before the court

In court proceedings, the tax court will determine which party has to submit which proof. In doing so, the court will remain reasonable. For instance, it will look at who will be able to submit proof the easiest. However, the court will have to comply with statutory conditions, such as with the previous example of the estimated assessment if no tax return is filed.