AG says informal disclosure of VAT payment difficulties does not prevent criminal liability

Summary

Dutch Advocate General Keulen has advised the Supreme Court to dismiss an appeal concerning the intentional non-payment of VAT. In his opinion, explaining financial and personal difficulties to a tax official did not constitute the concrete, timely and specified request for payment deferral required to rely on the exemption in Article 69a(3) AWR. [bijzonders…afrecht.nl]
The proceedings concern a sole proprietor who prioritised child maintenance and living expenses over VAT liabilities for three reporting periods. Although administrative default penalties had already been imposed, the Supreme Court previously held that those penalties and prosecution for intentional non-payment were not, in principle, based on the same offence. [avdr.nl], [bijzonders…afrecht.nl]
The opinion highlights the importance of formal and period-specific engagement with the Dutch Tax and Customs Administration. Taxpayers experiencing liquidity problems should not assume that the authority’s general awareness of their circumstances amounts to a valid payment-deferral request or protects them from potential prosecution for deliberately unpaid VAT. [bijzonders…afrecht.nl]

Article

Dutch Advocate General B.F. Keulen has advised the Supreme Court to reject a sole proprietor’s appeal concerning the intentional non-payment of VAT under Article 69a(1) of the General State Taxes Act, or Algemene wet inzake rijksbelastingen (AWR). The opinion was issued on 23 June 2026 and published on 3 September 2026 under ECLI:NL:PHR:2026:845. It is an advisory opinion and not yet the Supreme Court’s final judgment. [bijzonders…afrecht.nl]

The taxpayer operated an administration office and filed VAT returns but did not pay the declared amounts for three reporting periods. The unpaid VAT amounted to €17,409, €5,055 and €7,428. He explained that he had prioritised child maintenance obligations and essential living expenses. The Tax and Customs Administration subsequently issued additional assessments and default penalties of €522, €151 and €222, which also remained unpaid. [bijzonders…afrecht.nl]

The case has already reached the Supreme Court once. In its judgment of 4 October 2022, the Court held that default penalties under Article 67c AWR did not, in principle, concern the same offence as prosecution under Article 69a AWR. The Court emphasised the substantial difference in nature and seriousness, particularly the requirement of intent and the potential maximum sentence of six years’ imprisonment under Article 69a. It therefore set aside the earlier decision that the administrative penalties barred criminal prosecution. [avdr.nl], [bijzonders…afrecht.nl]

Following referral, the ’s-Hertogenbosch Court of Appeal found the taxpayer guilty but imposed no penalty or measure under Article 9a of the Dutch Criminal Code. The court rejected his reliance on Article 69a(3) AWR because he had not submitted a concrete and sufficiently specified request for payment deferral at the appropriate time for the relevant VAT periods. [bijzonders…afrecht.nl]

Advocate General Keulen agrees. In his view, telling a tax official about personal financial difficulties and stating that more time was needed did not amount to the required request addressed to the competent collection authority. A natural person must seek deferral in relation to the relevant tax liability and reporting period. General awareness within the Tax and Customs Administration is insufficient. [bijzonders…afrecht.nl]

The Advocate General also considers that no preliminary reference to the Court of Justice of the European Union is necessary. Although Article 50 of the EU Charter is relevant, the dispute primarily concerns the interpretation of national procedural rules. He recommends that the Supreme Court dismiss the appeal, potentially using the abbreviated reasoning permitted by Article 81(1) of the Judiciary Organisation Act. [bijzonders…afrecht.nl]

For businesses, the practical message is clear: VAT payment difficulties should be addressed before deadlines expire through a documented, specific and correctly directed deferral request. Informal conversations with tax officials should not be treated as a substitute for the prescribed process. This opinion does not itself determine the appeal, so the Supreme Court’s final ruling should still be monitored.

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