I hope that you, like me, take the above for granted. Indeed, this is inherent to the rule of law and the fundamental rights of the individual. Unfortunately, these essential principles do not hold true in taxation.

If you file an incorrect tax return – again purely hypothetically, of course – you will face two claims from the tax administration. On the one hand, you will obviously have to pay the tax that has not yet been paid. On the other, you will also be fined. And those penalties are anything but mild: the proportional tax increases and fines range from 10 to 200 percent.

These fines should be regarded as punishment within the meaning of criminal law. The European Court of Human Rights, the Court of Justice of the European Union, Belgium's Constitutional Court and Court of Cassation, all are in complete agreement on the matter. As a result, the taxpayers should also be able to count on essential legal protection when they are fined by the tax authorities.

Compared to our speeding offence example, taxpayers have very little recourse. After all, the imposed fine is, with the additional tax, a direct part of the assessment notice that ends up in their letter box. The legal force of such an assessment notice should not be underestimated. It has the force of a sentence and is immediately executable. Not only can tax authorities start collecting the additional tax straight away, they can also do so with the associated fine. It is then up to the taxpayer to take any objection to court. In such a case, the presumption of innocence – as would be expected under criminal law – no longer applies. The taxpayer has already been convicted of a criminal offence. Not by a judge, but by an administrative body of the government: the tax administration.

There is a problem, however. While the government provides tax administration officials with thorough training, this focuses on the application of the tax law rather than the criminal law. Yet, the officials of the FPS Finance must apply the principles of criminal law. For example, they must provide proof of ‘intent’ in the criminal sense of the word. But that often eludes them completely.

In a political climate in which – and quite rightly so – great efforts are being deployed against tax fraud, this means that many entrepreneurs and companies are being punished too severely. And that, incidentally, their essential rights to a defence are also being violated.

Criticizing is one thing, providing a solution is another. After all, taxes must be collected and that must be done efficiently. Likewise, it should be possible to fine. But with due respect for the rights of the taxpayer. Well, the solution is obvious, isn't it? Let the tax authorities carry out the additional tax assessment. To this end, they can act straight away by issuing the assessment notice. With regard to the penalty, they can submit a proposal to the taxpayer. Both parties will also be able to negotiate this amount. If they cannot reach a mutual agreement, however, a judge will then be the one imposing the fine in a judgement. If you think that's not possible, we're already doing it! As evidenced by the example of the speeding violation at the beginning of this column. I rest my case.

The author, Jan Tuerlinckx, is lawyer-partner at Tuerlinckx Tax Lawyers.

jan.tuerlinckx@tuerlinckx.eu