Summary

The title of this research is “Individual sentencing in the administrative law on tax fines”. It describes the very essence of this research and also its most important goal, namely, to gain a better understanding of the legal theoretical framework of the process of individual sentencing in the administrative law on tax fines by the tax authority.

My interest in tax fines and, more specifically, in the issue of ‘sentencing’ stems from the daily practice of an important part of my official work. On the one hand, I noticed that the tax authority often encounters problems with the application of their fine-arsenal and the amount of the fines to be imposed. On the other hand, my observation was that the way in which the tax authority determines the amount of a fine was regularly the subject of arbitration and criticism in professional literature. This led me to examine individual sentencing of tax fines, in order to provide more clarity.

Attention to the issue of sentencing is all the more necessary because the tax-fine arsenal has increased considerably in recent years. Not only has the number of punishable behaviors increased and the circle of persons to be fined expanded, but higher maximum fines may also be imposed where appropriate, thereby increasing the importance of mitigating factors.

Developments such as these place increasing demands not only on the available human resources of the Tax Administration, but also on those of the judiciary. On balance, sentencing is the work of individuals. In-depth knowledge of the entire sentencing process, including the more individualised sentencing, is indispensable. However, such knowledge is not only important for the tax authority imposing the fine and the person who receives it, tax consultants who assist fined taxpayers and the judiciary also benefit from sound knowledge of sentencing. Taken together, a careful weighing of interests is not possible without a thorough understanding and knowledge of the process of individual sentencing.

The research design is based on a legal-theoretical (internal) comparison between the administrative tax law on fines and criminal law. First of all, the object of this research is referred to as the individualised sentencing phase, which can be distinguished in both tax law and criminal law as the final stage in the decision- making process after it was established that all the conditions for punishability had been met. First in this phase, the possible mitigating and aggravating circumstances are discussed. In addition, the research is further demarcated in advance by confining the comparison to the criminal law that is addressed to the criminal court and not to the public prosecutor, who also has specific competence to impose criminal sanctions. The general rule of Chapter VIIIA of the General Tax Act (Algemene wet inzake rijksbelastingen, AWR) is used as a basis for the tax law on fines to be compared.

As can be deduced from the above, the object of the research is the legal standard of the process of individual sentencing in the administrative law on tax fines. However, legal standards can result from many different legal principles. Therefore, for the purpose of this research – and at the same time in order to structure it – it was essential to choose the legal principles which can be considered as the most decisive for the process of individual sentencing.

The process character of the research object was an important guiding factor. Indeed, by interpreting the decision on the level of penalties as a decision-making process leading to a separate decision (the amount of the fine), it is possible to use the three phases that can be distinguished in an administrative decision-making process. These three phases – which can, in a sense, also be identified in the criminal-law process of sentencing – concern the preparation of decisions, decision making and communication.

The activities carried out in these various phases, as well as the provisions of the General Administrative Law Act (Algemene wet bestuursrecht, Awb), made it possible to select the most relevant principles. For example, in the preparatory phase, the principle of due care often takes precedence, in the decision phase the principle of proportionality in particular, and in the decision communication phase the principle of stating reasons. The principle of impartiality serves as a general, supporting principle; it is important for the entire decision-making process.

As noted above, an important objective of this research is to gain better insight into the legal theoretical framework of the process of individual sentencing in the administrative tax fine law by the tax authority. To this end, the four principles of law mentioned above are used to examine which legal standards apply to, or may be considered applicable to, the tax procedure for apportioning criminal penalties. On the basis of these four principles of law, the tax law described in this way is then compared in certain respects with that of criminal law.

After the introductory Chapter 1, in which, among other things, the background of the central research question is outlined, Chapter 2 starts with a historical treatise on the origins of the administrative tax fine law in order to gain insight into this field of law. After all, a sound assessment of legal systems requires an understanding of their historical development. Specific attention was paid to the way in which fines were customised in the past and what principles and factors were considered important in this respect.

In addition, a study of literature and parliamentary history, among other things, attempts to map out the origin and development of the individualised sentencing in the tax area. For example, the moment in time is examined when the administrative tax fine was introduced, namely the “Generaal Plakkaat van 31 juli 1725 ‘op den ophef van de convoyen en licenten, mitsgaders op het lastgeldt op de Scheepen’”. Over the course of the following centuries, more and more variable fines were introduced, which were related to the amount of the tax in question, and the degree of culpability also played a role (through the use of the concept of ‘bad faith’). Attention was also paid to recidivism as an aggravating circumstance and the possibilities for remission and mitigation of fines gradually increased. For a long time, the prevailing view was that fines should be understood as compensation for loss of tax revenue rather than a punishment. This would change in the middle of the last century as a result of all sorts of developments. Ultimately, the Government finally adopted the criminal law vision in the draft General Tax Act of 1959 (AWR). This legislation included a system of light and heavy increases, a distinction similar to the current distinction between light fines for minor defaults (‘verzuimboeten’) and heavier fines for offences in case of gross negligence or intent (‘vergrijpboeten’).

Since 1998, the fine provisions of the AWR have been substantially amended. These changes were to a large extent the result of the conclusions and recommendations of the Van Slooten Commission, which, among other things, was instructed to review the legal fines in light of the developments in case law in the field of human rights treaties. A new Chapter VIIIA was introduced in the AWR, which would contain both substantive and procedural rules relating to the law on administrative tax fines. The fines were no longer compulsory and imposed by law, but were all described as so-called ‘can’ provisions. The consequence of this was that there could no longer be a sole policy of remission.

In summary, it follows from the historical research that the domain of individual sentencing of tax fines has gradually shifted from the legislator to the tax authority and that the (tax) law on fines has gradually been overturned by criminal principles and starting points.

In Chapter 3, in the context of this study, a legal theory on general principles of law and international law is presented at the outset. In fact, for this research – which looks at the way in which the punisher should judge the level of the penalty by law – it is important to describe how the law in general can produce rules of conduct (legal standards), against which the relevant actors can subsequently be addressed. Questions raised in this chapter relate to: What is a legal standard? Where does a legal standard come from? And where are legal standards to be found? The function and purpose of the law is also closely linked to the way in which a society is organised. The concept of the rule of law is central to this. After a brief historical reflection on the evolution of the democratic rule of law, the development of thinking about legal principles and standards and the relationship between the concepts of legal standard, legal principle and legal value is discussed.

This chapter then examines international (treaty) law and international case law. In recent decades, international law has become increasingly important in the development of legal principles and standards in criminal law and administrative tax fine law. This section of Chapter 3 sets out, inter alia, the international legal framework of the four principles of sentencing that are central to this research: the principles of impartiality, due care, proportionality and the obligation to state reasons.

Before these four main principles of sentencing are examined in Chapter 3, the demarcation of penalties covered by the fair trial principle of Article 6 ECHR is discussed. This provision is a major contribution to the development of national administrative law on fines in recent decades, as a result of its scope, and the principle contained therein can thus be regarded as one of the most important criteria for determining penalties. The ECHR consistently holds that the concept of ‘criminal charge’ within the meaning of Article 6 ECHR must be approached as an autonomous phenomenon. In doing so, the ECHR wants to make it clear, among other things, that the States bound by the Convention cannot disregard the fundamental legal guarantees of Article 6 ECHR by, for example, transferring criminal provisions to other areas of non-criminal law. An administrative fine is therefore considered by the court to be ‘criminal in nature’ when both the general character of the provision and the purpose of the punishment have a deterrent effect and are intended to add suffering (‘punitive’). According to the Court of Appeal, the amount of the fine (‘minor offence’) is not relevant in this respect.

The central question of this research is: “In which respect do the legal standards of the process of individual sentencing by the tax authority in the administrative tax law differ from the process of individual sentencing by the criminal court, and can this difference be explained in the light of the applicable legal principles?” In Chapters 4 to 7, this central research question is applied successively to the four aforementioned and selected legal principles. In these four chapters, for each legal principle, the sources of law relevant to the research is reviewed and subsequently analysed and explained in legal normative and judicial terms. By distilling the normative element from these principles, a general picture can be obtained of the framework of rights and obligations from which the obligations that are supposed to apply to the sanctioning authority on the one hand and the rights of the interested party on the other can be identified. Finally, the administrative tax law on fines has been compared with criminal law in various respects. After each comparison, partial conclusions have been drawn with due regard for the applicable legal principle and the specific context of the field of law concerned.

The principle of impartiality was first discussed in Chapter 4, since this principle is crucial to the entire sentencing process and not just to a limited part of it or a certain stage. This supporting principle – also known as the prohibition of bias – is inextricably linked with the principles of due care, proportionality and the stating of reasons. Therefore, this chapter also considers the relationship between these principles of law and the importance of the decision-maker’s independence.

An independent and impartial sanctioning authority is a prerequisite for the process leading to proportionate punishment. Thus, for example, an independent punisher without outside interference, after the completion of an impartial, i. e. non-biased investigation, followed by an impartial balance of interests, can make an impartial substantiated and expert judgment on the level of penalties. In addition, a punisher who radiates objectivity and lack of prejudice evokes confidence in the public and the person concerned. In doing so, the individual concerned may have specific confidence in a proportionate punishment coupled with the belief that the criminal circumstances they put forward will not be used against them. The person concerned will also be more likely to accept a punishment imposed by someone who, in that person’s opinion, is impartial and unbiased.

As far as the latter is concerned, at least in terms of impartiality, the administrative body (the tax authority) has by definition the opposite appearance. Unlike the criminal judge, the tax authority is dependent on the nature of the case. After all, they are part of the executive and may, in a balance of interests, tend to weigh their functional interests as well, which has consequences for the (appearance of) impartiality.

Nevertheless, there are possibilities to counter this pretence, such as the establishment of a separate sanctioning body, similar to what has in the past been referred to as the ‘tax fine authority’. Chapter 4, in which the external and internal independence of the tax authority and the criminal court are dealt with successively, elaborates on this ‘tax fine authority’, the idea behind this phenomenon at the time and the reasons why implementation was ultimately abandoned. This is particularly relevant now that the AWR legislature includes a provision (Article 67pb AWR) that completely overrides the function separation requirement of Article 10:3 (4) of the AWR, i. e. with regard to both the minor fines for defaults/omissions (‘verzuimboeten’) and the heavier fines for more serious offences (‘vergrijpboeten’). Finally, this chapter also discusses some other repair mechanisms to reduce the risk of (seemingly) biased actions. In criminal law, for example, there are two legal regulations that actually provide for the ‘repair’ of a defect with regard to the independence or impartiality of the judge: substitution and excuse. It is argued that these repair mechanisms are to some extent similar to the objection procedure in the case of administrative tax fines, especially if the objection leads to the correction of deficiencies in primary decision-making. In contrast to the impartiality of the judge, the tax authority is always taking sides.

Chapter 5 examines the first principle of the phased trial of sentencing: the principle of due care. In this chapter, particular emphasis has been placed on the procedural principle of due care, which relates to the preparation of the sentencing decision, as well as to both the depth and scope of the investigation into circumstances that influence the punishment and the relevant evidence in this respect. The principle of substantive due care, which is mainly based on careful consideration of interests and to a large extent in line with the principle of proportionality, is therefore dealt with in Chapter 6.

The procedural principle of due care, which relates to the preparation, formation and shaping of decisions, focuses basically on the accumulation of knowledge and requires a thorough investigation into ‘all relevant factors’. The factors (i.e. facts or circumstances) that are important for the sentencing decision are often referred to as special or sentencing circumstances. These facts and circumstances that influence the sentence can then be subdivided into aggravating and mitigating facts and circumstances.

In criminal law, the criminal court’s investigation at trial is usually preceded by an investigation under supervision of the public prosecutor. This is also often the case with administrative tax fines: during the investigation into taxation, finable behavior can be detected and then investigated further during an investigation into the level of guilt of the person concerned. As in the case of a preliminary criminal investigation, facts and circumstances relevant to the final sentencing decision can be observed in that guilt investigation, which may run in parallel with the investigation into taxation.

This chapter therefore compares the investigation procedures prior to the criminal and fine investigations with each other, and delves into the legal standards that determine the scope of the preliminary investigation. Even at this early stage, specific sentencing circumstances can already be the subject of investigation; sentencing factors may also arise throughout the entire investigation process. In this chapter, a comparison is then made between the criminal investigation at the hearing and the administrative hearing procedure.

In criminal law, the investigation into relevant sentencing factors during the entire process from keeping minutes to final filing is guaranteed in the Code of Criminal Procedure. The preparatory investigation is entirely dominated by the subsequent investigation at the hearing and the questions to be answered by the court there, including the final sentencing question (Articles 132 and 132a of the Code of Criminal Procedure). For example, the investigating officer has to keep minutes of everything that may be relevant to the level of punishment from the start of the investigation (Articles 152 and 153 (2) of the Code of Criminal Procedure; for the prosecutor: Article 148 (3) of the Code of Criminal Procedure) and the prosecutor, in turn, as the person responsible for the complete criminal file (Article 149a (1) of the Code of Criminal Procedure), must include all information that may be ‘reasonably relevant’ to the sentencing decision (Article 149a (2) of the Code of Criminal Procedure).

The administrative tax law on fines, on the other hand, has virtually no legal standards with regard to the investigation of sentencing factors in the course of a prior guilt investigation. Only the right of access to article 5:49 of the General Administrative Law Act can be regarded as such an (indirect) legal standard.

The mandatory administrative hearing procedure, which does not apply to minor fines (‘verzuimboeten’), is often referred to as the ‘compulsory hearing’. However, the administrative hearing procedure does not imply a duty to hear, but a duty to invite the offender to express his views. Therefore, if the tax authority has invited the person concerned, who ultimately refrains from exercising his right to be heard, there is no breach of the hearing procedure. The optional nature of this procedure may conflict with the tax authority’s duty to investigate. In addition, there are virtually no administrative procedural guarantees that support the proper conduct of investigations into specific, mitigating or aggravating circumstances.

This chapter then looks at specifically the question of the penalty level, which is discussed at the end of the investigation by the criminal decision-maker. In doing so, the criminal decision-maker must conduct further investigations on his own initiative in order to arrive at an appropriate punishment. In this respect, both (direct) legal standards relating to the conduct of investigations and (indirect) legal standards of an evidentiary nature play a role.

In comparison with criminal law, the stipulation of the fifth paragraph of Section 6 of the Administrative Fines (Tax and Customs) Decree (Besluit Bestuurlijke Boeten Belastingdienst, BBBB) raises doubts in particular. This provision stipulates that the burden of proof is on behalf of the taxpayer. Compliance with this rule is at odds with what may be expected from a diligent tax authority, who – in comparison with the public prosecutor and the criminal court – should also enact a certain magisterial approach. Therefore, the taxpayer does not have a burden of proof with regard to circumstances that reduce the penalty, at most a risk of proof. Section 6 of the BBBB is therefore (partly) incorrect and may lead to the tax authority wrongfully leaning back.

All things considered, the legal normative effect of the principle of due care within the tax law on fines shows gaps in comparison with criminal law, which means that there is a risk of insufficient investigation of possible criminal circumstances. This may lead to disproportionate fines with all the negative consequences that entails.

Finally, Chapter 5 focuses on the assessment of the financial capacity of the person concerned as a concluding part of the investigation cycle with regard to the sentencing procedure. This particular form of (further) research results from the (financial) capacity principle. This investigation into financial capacity is only possible within both criminal law and administrative tax law when a specific financial penalty or measure is finally considered. Unlike in criminal law, the administrative law on tax fines seems to contain more concrete legal norms for financial capacity investigations.

Chapter 6 examines the principle of proportionality, which is particularly relevant in the second phase of sentencing with regard to proportionate decision-making. This chapter reports on the investigation of the applicable criminal-law objectives within the various fields of law and their effect in legal normative terms. It also provides a description of the existing (categories and/or types of) sentencing circumstances in the administrative tax law on fines, and these factors were then compared with their criminal counterparts.

Before answering the question of the objectives pursued by punishment, Chapter 6 explores in turn the implications of the principle of proportionality in criminal law and administrative tax law relating to fines. The procedural side of the proportionality principle was first described, i. e. an exploration of legal rules that give a description of the proportionality principle in a general sense, without going into the question of how this should be done. Attention is then paid to the substantive aspect of the principle of proportionality, i. e. to the legal rules defining (types of) circumstances that influence the punishment.

The purpose of the sentence is central to its proportionality. Only after insight has been gained into the criminal objectives within the criminal and administrative (tax) law may it then be possible to investigate the method of punishment and the level of the punishment. This chapter therefore deals with the various criminal law objectives that can be distinguished in criminal and administrative (tax) law, as well as the specific objectives of financial penalties. This chapter further investigates whether and how the criminal targets can be placed in the process of individual sentencing. Finally, in the description of the various circumstances that influence the punishment, this chapter indicates whether and to what extent the objectives of the punishment play a role.

In the description of the criminal targets within both fields of law, the administrative tax law on fines and criminal law provide three common (‘principal’) criminal targets: retaliation, general prevention and special prevention. These three objectives of the punishment ‘carry’ the punishment and also influence the level of the punishment. In this context, it is important for the sentencing process that in first instance, the upper limit of the penalty is determined on the basis of the maximum level of retaliation. Thereafter, the penalty is determined within the renewed range taking into account the prevention targets. Therefore, a punishment cannot, on the grounds of general or special prevention, exceed the maximum level of retaliation.

At the outset, on the basis of definitions found in the professional literature, the term ‘retaliation’ was determined. To retaliate can be defined as relating the punishment to injustice and culpability, which involves retaliation of both guilt and deed. In determining the aforementioned upper limit, a picture must therefore be obtained of the severity of the injustice (also known as illegality) and the degree of culpability. In the meantime, the degree of illegality is largely determined by two factors: namely the effect (the damage caused or the danger created), and the shock caused to the public (the impact). Both elements, the damage element and the impact element, were then reflected on minor tax fines (‘verzuimboeten’) and the heavier tax fines (‘vergrijpboeten’).

In the case of both types of tax fines the damage element is often an important aspect, partly because of the link with the amount of taxes that is related to the punishable behavior and which can be characterised as (potential) financial damage. In addition, (significant) indirect financial damage, such as overpayments and incorrect allowances, can also be caused by erroneous data. Another form of damage concerns the carrying out of additional administrative work, for example, if the failure to submit a tax return requires estimates to be made that need later adjustment. The impact element, on the other hand, seems in general to be of minor importance in the case of tax fines. This is related to the limited openness of the process. It is only in an occasional case that civil unrest may arise, which could therefore justify the imposition of higher fines.

Culpability in the context of ‘guilt retaliation’ is also very important for the determination of tax fines. Particularly in the case of the heavier fines (‘vergrijpboeten’), this is evidenced by the fact that the initial amount of the fine depends on the degree of culpability (gross negligence 25% and intent 50%). The degree of culpability can also influence the level of minor tax fines. This can occur particularly in the case of the individual sentencing that takes place after an objection, for example when there is ‘reduced culpability’, a reason for mitigating that has similarities with the vision developed by Kelk and De Jong concerning the broad concept of ‘sentencing-guilt’.

The second term discussed in this chapter concerns ‘general prevention’. This term refers to the prevention of crime in society. The threat of punishment and actual punishment deters people from criminal behavior. This is often called the deterrent effect of the sentence. Moreover, the threat of criminal punishment (in law and policy) and actual punishment, and the associated individual sentencing, are not independent of each other when it comes to elaborating the objective of general prevention. The fact is that by imposing punishment, the threat of punishment is actually realised, with the result that the standard is confirmed against society. Enforcement and confirmation of standards, terms that are repeated regularly in the law on tax fines, are therefore part of general prevention.

In order to achieve a certain general preventive effect, the deterrence of potential offenders is important. In order to achieve a certain level of deterrence, it is necessary that the public be made aware of possible penalties to be imposed. In the case of administrative tax fines, the emphasis will be placed on the threat of punishment. This is based on communication about (new) legislation and regulations, including those relating to the 300%-maximum fines and explanations given on special enforcement actions. Whether the tax authority actually decides to impose a fine is of secondary importance because this does not take place in the public domain.

In addition to deterrence, the predictability of the sanction plays a role in the pursuit of general prevention. Two aspects are relevant here, namely the degree of awareness of the standard (above) to which the punishment relates and the probability of being caught. The higher the level of awareness and/or the higher the chance of being caught, the greater the preventive effect. The awareness aspect is of secondary importance in the case of tax fines, because the process of fining by the tax authority is not a public affair. On the other hand, the chance of being caught does seem to be of some importance in the case of minor fines (‘verzuimboeten’), due to the fact that these are usually automatically calculated by computer, which means that the chance of being caught – and hence the predictability – is high.

The third term of ‘special prevention’ was then discussed. Just like general prevention, special prevention focuses on influencing behavior, though not on society as a whole but rather on the perpetrator himself. Punishment from the point of view of special prevention is aimed at preventing criminal behavior by the offender in the future. In criminal law, special prevention seems to be particularly important in the choice of type of penalty(s) and measures (subsidiarity) and their execution. However, once a decision has been made to impose a fine, the purpose of special prevention is less important when determining its amount.

When judging the amount of a tax fine, the tax judge often uses the words ‘fitting and necessary’, whereby ‘fitting’ refers to the tailor-making process and the term ‘necessary’ more to a certain lower limit, a minimum penalty to enforce the standard. In the case of heavier fines, the tax judge regularly refers to the concept of ‘norm enforcement’ and then explicitly links this concept to the ‘necessary’ section and not to the ‘fitting’ section. As a result, special prevention in the sense of norm enforcement therefore seems to impose a certain lower limit for heavier tax fines (‘vergrijpboeten’).

Overall, prevention objectives generally seem to play a less prominent role in the tax law on penalties than retaliation of illegality and guilt. General prevention is mainly limited to confirming the general, deterrent standard laid down in law or policy. Special prevention (‘norm enforcement’) only seems to be important in imposing heavier tax fines (‘vergrijpboeten’), where it represents a certain minimum threshold, so that other criminal objectives cannot lead to a further reduction of the sentence than is required from the point of view of enforcement and/or confirmation of standards.

The final part of Chapter 6 examines the mitigating and aggravating circumstances, which occur in the administrative tax law on fines. These circumstances, nineteen in total, are classified according to the nature of the offence, the person of the offender, the manner in which the offence was committed, the effects of the act and the circumstances in which the act was committed.

Six ‘other’ circumstances could not be classified under any of the above categories. These factors – all of which have a remitting effect – therefore serve purposes other than the regular criminal law objectives, such as compensating immaterial damage, eliminating uncertainties in the amount of taxes on which the fine is based or preventing legal inequality.

Of the nineteen circumstances, eight can be described as (mostly) aggravating, all of which can be traced back to one or more criminal objectives and which are mainly related to the nature of the offence and the way in which it was committed.

Twelve circumstances can be characterised as (mostly) mitigating. These factors occur mainly in the field of the categories ‘effects’, ‘context’ and ‘other’ circumstances mentioned above.

Comparison with criminal law shows that most of the determined circumstances have a criminal counterpart. In such cases, however, the specific context of the two fields of law is so different that it is not possible to make statements about the similarities and (explanations of) differences with regard to the valuation and weighing of the circumstances examined.

Two circumstances have a clear criminal counterpart: the concealment of box 3- income and undue delay. As a result, similar basic principles are generally applied in the sentencing processes.

A number of the examined circumstances – the limited exceeding of the time limit for filing and payment, the reversal of the burden of proof and the straightening out of amounts concerning tax debts and tax returns – were found to be so specific for the tax law on fines that no similarity could be found with a criminal circumstance.

Finally, Chapter 7 examines the principle of stating reasons. This principle, which manifests itself in the third and final phase of the sentencing process, has experienced a revival in criminal law in recent decades due to the continuing call for clearer sentences. By carefully stating reasons for the level of the penalty, the person concerned is informed of the manner in which the sanctioning authority has arrived at the relevant penalty. Ideally, therefore, this also means that insight is given into the way in which relevant mitigating and aggravating circumstances has been investigated (the ‘knowing’, phase 1) and how the various factors have been weighed (‘valuing’ and ‘weighing’, phase 2).

Like other principles, the principle of stating reasons also has a substantive and a procedural dimension. The substantive principle of stating reasons is based on a sound factual basis; the grounds must be able to bear the content of the decision. This substantive component is largely fed by the outcome of the preliminary fact- finding (the phase of ‘knowing’) and a proportionate balance of interests (the phases of ‘valuing’ and ‘weighing’). The procedural principle of stating reasons, on the other hand, refers to the communication of the adequate substantiation for the decision. Both dimensions are relevant to the decision on sentencing. In this chapter, therefore, attention has been paid to both aspects.

In this chapter, with regard to the sentencing decision, the issue of the normative effect of the principle of stating reasons is addressed in the national administrative tax law on fines and then in the national criminal law.

The first item of note is that the principle of stating reasons is very different in both fields of law. For example, the principle of stating reasons must be stated in the administrative (tax) law – unlike in criminal law – has been codified as a general principle of good administration in Articles 3:46 to 3:48 of the General Administrative Law Act. These provisions are also of prevalent importance for sentencing. The legislator has mainly left the development of specific standards for stating reasons to the courts. This is not the case in criminal law; the Penal Code and Criminal Procedure contain numerous obligations to state reasons, including the level of penalties.

The legal standards with regard to the explanation of the sentencing decision has only developed to a limited extent within the administrative (tax) law on fines. For example, there is virtually no case law in this area. Taxpayers probably do not see any merit in putting forward a lack of reasons stated as a separate complaint, because deficiencies in administrative law often do not have a major impact on (the legal effects of) the decision.

However, this is different in criminal law. If the criminal court finds that there has been a violation of the provisions concerning the obligation to state reasons of Articles 358 and 359 of the Code of Criminal Procedure, this leads to the nullity of the judgment in question and the accused goes unpunished. That is why the stated reasons for the verdict are frequently challenged before the criminal court. To date, however, this has not led to any further legal standardisation by the criminal court concerning stating reasons for the sentencing decision. The criminal chamber of the Supreme Court remains of the opinion that the criminal court is in no way obliged to state reasons for the choice and appreciation of factors influencing the level of the punishment.

In the final consideration of Chapter 7, this leads to the general conclusion, among other things, that in both tax and criminal law, the legal normative effect of the principle of stating reasons with regard to sentencing is relatively minor. The lines laid down by the regulators are not or hardly reflected in the case law (tax law on fines) or have been consistently disregarded by the incumbent magistracy (criminal law). In this respect, therefore, the two fields of law are similar in nature; there is little concrete basis for those involved to successfully address a lack of substantiation.

Nevertheless, the above does not alter the fact that in general the administrative tax law on fines can use a more solid anchoring of the principle that reasons must be stated for justifying the level of penalties. Criminal law can serve as an example. Inspiration can be gained from the initiatives taken by the criminal legislature in the past, for example with regard to the stating of reasons of criminal fines and the duty of response with regard to financial capacity defences (Article 24 of the Criminal Code) and the sanctioning of deficient substantiation in the form of a mitigation of sentence (Article 359a of the Criminal Code).

The conclusions with regard to the central problem definition are presented in the concluding Chapter 8. In summary, it can generally be concluded that the differences between the tax law on fines and criminal law are numerous and cannot be explained unequivocally. In addition, it can be said that the administrative tax law on fines can make a further development change. Therefore, Chapter 8 also contains some recommendations which govern the legal principles examined in the previous four chapters.

Individual sentencing of administrative tax fines is attracting increasing interest. Professional journal articles are regularly published on this subject, but more in- depth studies have not been carried out to date. With this research, I have attempted to provide an impetus to this end: on the one hand by clarifying the differences between the tax authority and the criminal court and on the other by raising awareness of the steps that may still be taken to arrive at a fairer trial of individual sentencing of administrative tax fines.

I am also aware that in the design of the research, in view of the ‘unexplored nature’ of the topic, choices were made that leave room for further discussion. I therefore sincerely hope that my research will be a source of inspiration for further research.