On January 30, 2014, Ms. Van Hilten, the Advocate General attached to the Supreme Court, issued her independent opinion on the appeal a taxpayer had filed before the Supreme Court regarding the judgment rendered by the Amsterdam Court of Appeals in a case dealing with the tax on games of chance. The taxpayer was represented in this case by its lawyers, Mr. D.G. Barmentlo of KPMG Meijburg & Co and Mr. B. Jongemans of Gaming Legal Advocaten. Central to this case was whether the government, by introducing a tax on games of chance on slot machines, had violated the right to property. That right is protected under Article 1 of Protocol No. 1 to the European Convention on Human Rights (ECHR).
In the Opinion issued by the Advocate General, she argues that the tax legislation on games of chance, if considered in isolation, does not automatically mean that the government’s legislation violates the fair balance requirement of the ECHR. Nevertheless, it may very well be the case that it will lead to an excessive burden in individual situations and that precisely for this reason it could be argued that the right to property has been violated. This must be evaluated on a case-by-case basis. According to the Advocate General, important factors in this respect are burden increasing circumstances such as the ban on smoking, the VAT revision rules, the content of existing contracts and the refusal to defer payment.
The Advocate General argues that damages could be claimed if a taxpayer has been able to prove that the increased burden violates the right to property. These damages could be awarded by either the tax courts or in civil proceedings. It is up to the taxpayer to decide which course to take. Those taxpayers that on the advice of KPMG Meijburg & Co and Gaming Legal Advocaten preserved their rights, can instigate civil proceedings. Lawyers Barmentlo and Jongmans may have found a solution for those taxpayers that failed to do so.
The Advocate General has recommended that the Supreme Court refer these cases so that it can be determined whether an individual and excessive burden is present and whether these taxpayers are therefore entitled to claim damages.