The tax courts, at the level of the courts of first instance, were created. The undeniably contradictory position of the regional director came to an end.  On the one hand, this position was bound by the general principles of procedural due process and, on the other, it was hierarchically subordinate to the top management of the FPS Finance. The laws then made a more than creditable attempt to guarantee the basic principles of the rule of law and the associated principles of due process.

A quarter of a century later, we are back to square one. In 2024, the procedure is no longer sufficient to guarantee the fundamental rights and freedoms of taxpayers. The staff shortage at the FPS Finance, the KPIs imposed on taxation officials, the sociological developments experienced by our society, the judicial backlog, the lack of tax judges, the complex regulations and the huge amount of data that is now included in any tax file, ... these are just a few of the bottlenecks that have led to this widely supported conclusion: we should go back to the drawing board to draft new laws.

There appears to be little interest in doing that. But appearances can be deceptive. Two coalition agreements have already stated “Restoring trust between citizens and the tax administration” – also called “taxification” – as one of their objectives. A new tax charter would be created that would constitute a code of conduct for both tax officials and taxpayers. But that charter does not exist – yet. And in practice, things are moving in the opposite, negative direction. Tensions between taxpayers and tax authorities are increasing. The tax administration is treating taxpayers indiscriminately, while taxpayers expect a tailored approach, because of their increasing sense of independence and justice. The lack of objective analysis of the specific situation in which individual taxpayers find themselves fuels the polarisation and escalation of the tax dispute.

In addition to the changes that need to be implemented in the current judicial procedure to make it more efficient and fairer (tax pre-assessment disputes such as in summary proceedings, preliminary questions to the Court of Cassation, the intervention of legal experts, etc.), the mindset regarding the cooperation also needs to change. This means that efforts must be made to develop the willingness to reach an effective settlement. If more awareness is created within the tax administration, it will be possible to use the existing cooperation models, such as tax mediation and judicial mediation, more efficiently. This would also benefit the judicial backlog.

Tax mediation as it exists in Belgium today still raises questions in many areas. The tax mediation service in Belgium is and remains a service of the FPS Finance. Tax officials are often unable to get through to fellow officials who will thoroughly assess their case files. Conceptually, this tax mediation does not meet the common law definition of mediation as described in the Judicial Code, nor does it fulfil the internationally accepted definition: confidential, structured and, above all, an independent, neutral and impartial third party. In tax mediation, parties are not assisted by a service of the FPS Finance.

“Justice must not only be done; it must also be seen to be done.” A procedural quick win that would benefit all parties involved should not consist in allowing solely tax officials to mediate. Rather, the mediation should be turned into a parity system, with representation from both the government and civil society. Tax experts, i.e. accounting professionals, could act as the taxpayer’s representatives. However, efforts to establish effective training and a clearer framework are a prerequisite. Let's say an institute for tax mediation with an associated accreditation. All in all, there is only a small step to take, as it has to be under the wing of the Institute of Tax Advisors and Accountants (ITAA).

And the appointed members of the mediation service are from the Finance department. Under this system, the tax intermediary, in his or her capacity as a tax official, is bound by the hierarchical obligation of obedience. This means that he or she has no choice but to follow administrative positions or positive case law. The administration is both mediator and party, despite the formal requirements that the mediation official must be independent, and cannot receive instructions from the tax administration. There will always be a certain level of collegiality, and as mentioned earlier, not only is the objective requirement of independence and impartiality important; any appearance of bias must also be removed. “Justice must not only be done; it must also be seen to be done.” The requirements.