Lodging a Supreme Court appeal in tax cases
The Supreme Court is the highest court in tax cases. It is also the highest court in Caribbean tax cases. In tax cases, an appeal before the Supreme Court is brought by filing a notice of appeal with the Supreme Court’s Tax Division. This must be done within six weeks of the contested judgment. Tax cases are heard in administrative law proceedings.
No mandatory legal representation, except in respect of oral or written explanations
In tax cases, unlike in civil cassation cases, there is no mandatory legal representation. Parties are therefore permitted to file an appeal in cassation without engaging a lawyer. An exception applies when written or oral arguments are presented to the Supreme Court: this is the exclusive preserve of lawyers.
Scope of the review in Supreme Court Proceedings
In tax cases, like in civil cassation cases, the Supreme Court’s review of the lower court’s judgment is confined to legal and procedural errors. In tax cases – unlike in civil cassation cases – the Supreme Court is competent to set aside judgments on grounds other than those put forward in the notice of appeal in cassation.
Course of the proceedings
Proceedings before the Supreme Court’s Tax Division differ from civil law proceedings in some respects. Unlike the initiating document in civil proceedings, the notice of appeal in tax proceedings need not set out the reasons for setting aside the contested judgment. The grounds for appeal in cassation may be submitted at a later date, within a time limit to be set by the Supreme Court.
The subsequent procedural steps broadly resemble those in civil proceedings. The opposing party will be given the opportunity to submit a statement of response. As in civil cases, when submitting their response, the respondent can also lodge a Supreme Court appeal of their own (a ‘cross-appeal in cassation’).
The parties may request leave to explain their positions further in writing or orally, i.e. to present written or oral arguments. This request must be made no later than upon the filing of the statement of response (by the respondent), or two weeks thereafter (by the applicant). If neither party requests such arguments, the party who brought the Supreme Court appeal can reply to the response within four weeks by filing a statement of reply. The other party, in turn, can respond to this by filing a statement of rejoinder.
Opinion of the procurator general and judgment of the Supreme Court
The procurator general can issue advice (an ‘opinion’) on the case, but, unlike in civil cassation proceedings, this is not mandatory. The opinion constitutes an independent recommendation to the Supreme Court as to how the case should be resolved. Although the Supreme Court is not bound by the opinion, it frequently concurs with it.
The Supreme Court will subsequently give its judgment. In 5% to 10% of cases, the Supreme Court allows the appeal in cassation. This low percentage can be attributed to the fact that, in tax cases, a relatively large number of unmeritorious appeals in cassation are lodged that are bound to fail. The consequences of an appeal being allowed or dismissed, wholly or partly, are comparable to those in civil cassation proceedings. The average processing time of tax cases is around nine to ten months, but in complex cases this can take considerably longer.
Costs of the proceedings
Where a taxpayer is wholly or partially successful, the administrative body (their opposing party) must reimburse their costs. Even where the taxpayer is not successful, the administrative body may be required to reimburse their costs in some cases. In other cases, no order for costs is made. By contrast, in practice taxpayers will not be ordered to pay the costs incurred by an administrative body in a tax case. Such an order is only possible where the taxpayer has made manifestly unreasonable use of procedural law. Cost orders consist, moreover, of fixed sums (a few thousand euros) which are substantially lower than the costs actually incurred.
As in civil proceedings, court fees are payable in Supreme Court tax appeal cases. However, in tax proceedings the amount of the court fee does not depend on the financial value of the case.
