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Arnhem District Court 4 July 2007
Re: Appeal against ruling by the Tax and Customs Administration in response to notice of objection Cc: Upper House and (party chairmen/chairwomen of) Lower House
Dear Sir, Madam, In a letter dated 31 May 2007, the Dutch Tax and Customs Administration rejected the notice of objection to the preliminary company tax assessment for 2007, assessment number 64.57.502.V.70.O112. In writing this letter I would like to appeal against this ruling. This appeal is structured as follows:
a) How democratically is legislation enacted?
1. Justification by the Tax and Customs Administration “Allowing the notice of objection would to me, as a civil servant, be tantamount to flouting the law. By deliberately not administering the law I would fully ignore that the law was enacted democratically.” “I have pointed out to you that I believe that, based on the arguments you presented in your notice of objection, a court could not reach a different verdict either. Judicial review does not stretch to allowing courts to review the law themselves. Article 120 of the constitution explicitly forbids courts to review the constitutionality of Acts of Parliament and treaties.” “In our current legal system, legislative power is vested in the Upper House and the Lower House. This relates to Acts of Parliament. Civil servants are members of the executive and must loyally execute legislation enacted by parliament. They cannot render acts inoperative or declare acts non-binding as they see fit. The only way of reviewing the implementation of Acts of Parliament is by testing them against treaties. Treaties are higher-order rules. An example is testing tax law against the European treaty. However, your notice of objection does not contain any statements or concrete arguments that show that the Company Tax Act is contrary to one or more international treaties.” 2. Context of the issue Perhaps the key element in the Tax and Custom Administration’s statement is: “Allowing the notice of objection would to me, as a civil servant, be tantamount to flouting the law. By deliberately not administering the law I would fully ignore that the law was enacted democratically.” How democratic is a society when some make money under the protection of the law, while others have to work for it? The question summarising this appeal is as simple as that. But do we have the courage to see it? Whether we acknowledge it or not, we live in a plutocracy rather than a democracy; the latter unfortunately only serving as a window-dressing or propagandist exercise. For who takes the key decisions these days: the financial world or the people? Even governments are spoon-fed by the financial world, so I have no hesitations whatsoever refuting the argument that legislation is enacted democratically. These days, money rules – not the people or democracy. Will this become debatable in Dutch court rooms and in parliament? Some receive money under the protection of the law (interest, taxes, grants, benefits, etc.) while others have to work for it. What does this do to communication, to independence, to people’s sense of responsibility and of justice? It has resulted in indirect communication – make profit first and we’ll see from there. This has left us theoretically and practically unable to take up the social challenges in the here and now. Over time, this has made us incredibly inefficient from a democratic point of view. When we receive money protected by the law, we become mechanistic, soulless automatons, pre-programmed robots, capable only of protecting our source of income. That does not amount to much, as we are protected by the law. Equal opportunities for everyone? Honest and fair? b) No separation of legislature and controlling power in the Netherlands “Article 120 of the constitution explicitly forbids courts to review the constitutionality of Acts of Parliament and treaties.” When push comes to shove, the controlling power appears to be vested in the legislature, the Upper and Lower Houses. Someone like me, without any legal training, may frown on this and raise questions. In all my legal naiveté I assumed that the Supreme Court of the Netherlands served as a Constitutional Court, the ultimate place to review the constitution. The fact that this responsibility is handed back to the legislature entails the risk of creating a legal vacuum. I think it is crucial to have a healthy dynamics and balance of power between the legislature and the controlling power, a balance that is now tipping towards the legislature. The ambiguity on this score could already be sensed in previous correspondence with the Prime Minister and the Supreme Court, while the Lower House did nothing more than distribute my document among the members of the Committee for Economic Affairs (See appendix II.) In this context, it is interesting to quote from a later reply from the Lower House’s committee for petitions and civic initiative: Legal remedies are available for tax returns. Ultimately, a case may be decided before the court. If the inspector rejects your notice of objection to the return in question, you can appeal to the tax division. This feels like a legal no man’s land, a legal vicious circle, a Kafka-esque world where no‑one seems to be responsible for anything. You are referred to the next instance in the unconscious hope that you will get lost in this bureaucratic labyrinth. In this case, time is on the side of the ‘guardians’ of the legal system. The committee for petitions and civic initiative refers me to a court that is not competent to rule, as the case law appended to the ruling shows. I hope I am not the only one to see that something is amiss here? We are playing bureaucratic hide-and-seek, something governments can keep doing ‘thanks to’ the assumption that money is worth money, which means that money (as in the form of taxes) keeps rolling in anyway. The question is whether the government and citizens (and businesses) have become rivals. Regardless of the answer, it is easy enough for the government to talk from its legally fortified ivory tower of bureaucracy, hiding behind the law but without having its roots in society. Everyone would like to be able to make money that way. But does that raise people’s awareness of the world in which we live? You are legally allowed to bring anything up for discussion except the system itself. This enables governments to play legal hide-and-seek forever if they want. They are both enactors and controllers of the law, while citizens are given the legal brush-off with the argument that the law came about democratically. Healthy signs of an open society and a constitutional state seeking justice, or medieval Catholic conditions? That way, the Tax and Customs Administration has no need to respond to the content of a number of the arguments I presented in the notice of objection: - While A works, does business and borrows money to earn a living, B receives money under the protection of the law (This, in practice, means that the law itself produces money – a miracle?). That way, A and B keep themselves and each other captive, leaving them unable to find C, the exit (democracy and constitutional state), even if we would like to. - Equal opportunities, just and economic, or simply mundane institutionalised bureaucratic abuse of power? - This notice of objection seeks to democratise the economy, to free it from its two-dimensional bureaucratic prison. This notice of objection, then, does not intend to change the law, but to take it seriously. (For the sake of clarity, I am talking about the constitution.) These are all arguments the Tax and Customs Administration disposes of by saying that the law was enacted democratically. Which law? The Company Tax Act? The constitution? Both? And if so, which one takes precedence? Perhaps the court should reflect on which article is more important: Article 1 of the constitution or Article 120? That is something the court hopefully can pronounce judgement on, so that the spirit of the law is revitalised, given some of breathing space again. Thorbecke (Dutch liberal statesman, 1798 – 1872) already anticipated the danger of Article 120 of the constitution, which he expressed as follows: I believe everyone will be stopped by this new maxim as if by a closed door….. dubious obscurity in a constitution that should itself light the way…. How can a constitutional state function if the legislative power and the power to control legislation are vested in one and the same body? Montesquieu would turn in his grave. The court will have to assess this appeal on the basis of the question which article from the constitution takes priority, Article 1 or Article 120? If Article 1 prevails over Article120, this appeal’s core question once again becomes vital: Does the fact that some make their money protected by the law (interest, taxes, benefits, grants, etc.) while others have to work for their money and pay interest and taxes on it produce the equality that Article 1 of the constitution aspires to?
c) Chronic ambiguity about public and private interest A tricky subject that has lost none of its topicality since Adam Smith. Perhaps the most important task of governments is to monitor and organise public interest. But what is the public interest? Is it that which unites us or that which we must all, individually, aspire to achieve? Is there anything in our political economy these days that we can call our common key priority? Perhaps we can agree on this without having to look very far. Economic growth or profit is our most important politico-economic priority these days. We assume that without profit and growth there will be no investments in education, health care, infrastructure, solidarity, etc. But is that true? To answer this question, we must distinguish between direct and indirect communication. Politico-economic model I: indirect communication
The government’s most important task in this model is to keep the flow of profit going and ensure that the pursuit of profit does not have too many negative side-effects on society. These are rectified using new laws and regulations. The problem with this politico-economic model is that governments, the business community and citizens are continually caught between the public interest and the preferred social priority of making a profit, rendering efficient mutual communication virtually impossible. The biggest problem with indirect communication is that the government is a stakeholder in this model, sacrificing the required impartiality, as a result of which, over time, the government loses its credibility and becomes a plaything of interest groups. Politico-economic model II direct communication In this politico-economic model, social priorities are arranged in order of importance.
The government’s most important task in this model is to monitor and organise the prerequisites. In practice this means that the private interest should not be at the expense of the public interest. This creates a framework within which individuals can develop their creativity, in what Rousseau calls the social contract. This politico-economic model of direct communication more clearly sets social priorities, through which most of the confusion concerning public and private interest can be reduced. That way, the government, business community and citizens can communicate more openly and more efficiently because there is greater clarity about shared priorities. This will lessen the current economic and political doublespeak. d) Conflict with the European Convention on Human Rights As a review appears to be difficult within the Dutch legal system (which in itself constitutes a major legal, economic and democratic problem) it is important to review against treaties the assumption that money in itself is worth money (interest). As Mr Van der Laan indicated in the justification of the decision: The only way of reviewing the implementation of Acts of Parliament is by testing them against treaties. Treaties are higher-order rules. An example is testing tax law against the European treaty. However, your notice of objection does not contain any statements or concrete arguments that show that the Company Tax Act is contrary to one or more international treaties. By signing the European Convention on Human Rights, the Netherlands indicated that it takes this convention seriously. Below I will discuss the articles from this convention that, in my opinion, are contrary to the concept of charging and paying interest, which creates inequality from the outset and which lies at the root of today’s unchecked bureaucracy. Article 1 Obligation de respecter les droits de l’homme By charging and paying interest, we have become entangled in an intricate web of bureaucracy that we have woven together and that prevents us from efficiently tackling the social and constitutional problems and challenges in the here and now. Or as Simon Schama expresses Toqueville’s views in his book about the French Revolution: In his view there were no short time problems, only deeply-seated structural ones that could not be changed – even by the Revolution – for he* thought he saw the same ills of centralization and the heavy hand of bureaucratic despotism recurring endlessly and hopelessly through French History. Simon Schama in Citizens, A Chronicle of the French Revolution * Tocqueville The interest receiver pockets the profits because of the assumption that money in itself is worth money, without really worrying about people and society, led solely by the interest in money like some kind of bureaucratic psychopath who has lost all empathy with the world in which he lives, having exchanged it for the less confronting two-dimensional paper world of profit and growth. The interest payer behaves like a willing errand boy for this empathy-lacking bureaucrat, and together they have been swallowed up by a large bureaucratic machine that has run amok. This has made them both insignificant little cogs in a meaningless machine whose aim it is to make a paper ‘profit’, a conditioned robot with little affection and responsibility for people, society and the environment. While bearing responsibility for profits, life and humanity are reduced to pesky inessentials that, in most cases, have a negative impact on potential profits. Unless people, like docile consumption animals, can be stuffed with even more paraphernalia that benefits paper profit, our main social priority. People who want to make a more sustainable contribution are admonished by the current social contract, “make profit first and we’ll see from there!”Fortunately, honourable citizens and businesspeople still do a lot of good, but they too are caught in a stifling and bureaucratising world.
Article 2 Droit à la vie
The right of the (bureaucratically) strongest rules – politically, economically, legally and democratically – because of the assumption that money in itself is worth money. This has resulted in a bureaucratic prison or bureaucratic fascism at the expense of life itself. Hitler, the leader of the Nazi conspirators who are now on trial before you, is reported as having said, in reference to their warlike plans: "I shall give a propagandist cause for starting the war, never mind whether it be true or not. The victor shall not be asked later on whether he told the truth or not. In starting and making a war, not the right is what matters, but victory. The strongest has the right." The fact that competition is one of our main economic principles and those asking interest are far better protected legally, economically and politically than entrepreneurs has, over time, resulted in great social indifference and a general sense of powerlessness in respect of the ability and right to do business for the benefit of the individual and common prosperity of society. Collaboration or sabotage is the hardly edifying choice these days. For humanity to survive, we will have to reclaim our individual sovereignty in the service of society. The party charging interest is far better protected legally than the one paying it and can claim their rights whenever they want, without having contributed anything remotely constructive to society. This ‘paper world’ holds all power these days, at the expense of human existence itself. ‘Inspector’ Licata: You have built your fortune on blood, letting it grow very patiently and methodically by doing the dirtiest of business. Stefan Litvak/Kiriu (A former Nazi who has taken on the identity of a holocaust victim): No, not me. History. History is a string of massacres. It is no worse now than it was a thousand years ago. The weak are defeated, the strong (…) accept that we are not perfect. It has always been like that. I have been waiting for over fifty years for you, Mr Nobody. But I am calm. For I am today’s history….. And there's nothing you can do about it. From the Italian mafia series La Piovra, episode 6, season 6 It is not people who are responsible these days, but rather abstractions such as the market, the financial world, politics, the business world – everything is responsible but people themselves, who obediently do what they are told within these abstractions and institutes. By assigning an intrinsic value to money, it acts as a profit accelerator, as accounting leverage that has assumed a life of its own opposed to life, to mankind itself. Both those who ask interest and those who receive interest must free themselves from this bureaucratic oppression and conditioning. Interdiction de l’esclavage et du travail forcé Everyone wants to be/become free, independent and human yet these days we are promoting the exact opposite and must subject ourselves to the bureaucratic slavery that has alienated us from the real demand (including safety, independence, sustainability and justice) and supply (an economic society to which everyone is invited to contribute) in our society. “…who asserts that “there has never been a civilised society in which one segment did not thrive upon the labour of another. (…) History bears this out. In Eden, where only two were created. Even there one was pronounced subordinate to the other. Slavery has always been with us and is neither sinful nor immoral. Rather, as war and antagonism are the natural states of man, so too slavery, as natural as it is inevitable.” Well, gentlemen, I must say I differ with the keen minds of the South and with our president, who apparently shares their views, offering that the natural state of mankind is instead – and I know this is a controversial idea – is freedom. Is freedom. And the proof is the length to which a man will go to regain it, once taken. (…) He will try and try and try, against all odds, against all prejudices, to get home.” John Quincy Adams (Anthony Hopkins) in de film Amistad Both those who pay interest and those who ask interest should be free and independent instead of remaining prisoners of the institutionalised bureaucratic corruption and blackmail mechanisms. Today’s politics, business community and citizens have become slaves of our out-of-control bureaucracy. Every political party wants to reduce bureaucracy, but no-one has the nerve to wonder what the source of this out-of-control bureaucracy is. This source is the bureaucratic assumption that money in itself is worth money.
Article 5 Droit à la liberté et la sûreté The assumption of mutual competition for the benefit of bureaucratic victors protected by law has, over time, put increasing and chronic pressure on security and liberty. Money is no longer backed by any substance of real value David C. Korten These days, interest receivers and interest payers are mere unfeeling tools within the two-dimensional structure of economy and society. Article 6 Droit à un procès équitable Because the right of the bureaucratically strongest has become institutionalised in today’s world, they have more rights and more power, they pay for the ‘best’ staff, the ‘best’ lawyers, the ‘best’ advertising agencies, the ‘best’ reporters, and both politics and the judiciary are fully dependent on them for their survival. This has increasingly compromised independence and objectivity to the extent that they have, in effect, become impossible and, in this day and age, it shuts the door on the independent and responsible functioning of individuals, companies, government, representative bodies and the judiciary.
Article 9 Liberté de pensée, de conscience et de religion Any interest receiver and payer wanting to practice sustainability, liberty and democratisation will be admonished continually, because the first priority is to make a bureaucratic profit, this being the politico-economic pensée unique of our times. This has banished independent functioning of inner conscience and common sense to the lowest caverns of our consciousness in the naïve hope that it will go into hiding. For now, building a skyscraper is easier for people than penetrating their own consciousness. They feel more at home in front of a TV than in their own sensory world. But the long and short of it is that more than 75 per cent of human life is played out in our subconscious. Despite the talents that have put us into space, we are basically just winging it, resulting in the all too familiar consequences of conflicts, poverty, hunger, war, loneliness, sadness.... Jurriaan Kamp in Because people matter Article 10 Liberté d’expression Raising questions about interest, profit and perpetual growth is like a medieval heretic questioning God’s existence or the workings of the Roman Catholic church, the difference being that the stake has been replaced by political, economic and legal exclusion. "Massive poverty and obscene inequality are such terrible scourges of our times — times in which the world boasts breathtaking advances in science, technology, industry and wealth accumulation — that they have to rank alongside slavery and apartheid as social evils." Nelson Mandela (1995)
Article 14 Interdiction de discrimination Competition in its virtually unbridled form as practised today is tantamount to economic apartheid and discrimination, nurtured by the assumption that money in itself is worth money for the benefit of a bureaucratic elite and at the expense of our sovereignty, integrity, environment, integration and democracy. I should point out here that we all belong to this bureaucratic elite. After all, without the mainstream believing that money in itself is worth money there would be no bureaucratic elite. EURL Petit Château de Roquetaillade – Aveyron does not enjoy the same level of legal protection as De Hutte Holding BV because of the legal protection of the assumption that money in itself is worth money.
Having looked the beast of the past in the eyes, having asked and received forgiveness… let us shut the door on the past – not to forget it – but to allow it not to imprison us. Archbishop Desmond Tutu (Truth and Reconciliation It is appalling for an integral businessman to become aware that he is upholding social and economic discrimination and even systematically promoting it.
Article 17 Interdiction de l’abus de droit By making people financially dependent, they become easy prey for the bureaucratic victors, politically, commercially and legally.
e) The confusion between the letter and the spirit of the law How can people who believe that money has an intrinsic value ever gain responsibility, ever learn to stand on their own two feet? Whether in politics, the judiciary, science, media or business, we must learn to deal with reality. If we continue to hide behind bureaucratic illusions, we will never be able to give form and substance to society in an efficient manner. The fact that the economic base figures of inflation and interest rate completely cancel each other out is still a scientific taboo these days. But I do hope that, unlike in the days of Copernicus and Galileo, it doesn’t take more than a hundred years before this simple truth dawns on us. The Tax and Customs Administration’s argument that the law was enacted democratically washes only when society is organised on the basis of democratic principles. But how democratically organised is our economy? In the economy, survival of the fittest is the only thing that counts. Is that our idea of democracy? Even though we make numerous acts and regulations to right what was wrong to begin with, if we are afraid to take a hard look at it, are we, as humankind, worth anything? The underlying objective of this appeal is to restore trust by a democratisation of the economy through improving direct communication. This is possible if we replace the current economic priority of making a profit – which leads to indirect communication – with sustainability, participation and entrepreneurship. That way, the letter of the law can be revived in the spirit of the law, because people will matter again.
3. In conclusion Who makes the real decisions these days: the financial world, regular citizens, democracy? We have alienated ourselves from the truth and conjured up a two‑dimensional paper make-believe world that is imposing its iron will on humanity; at the expense of independence, sustainability and democratisation and clearly in contravention of the European Convention on Human Rights. As a result, no-one feels any real responsibility any more; we pass the buck to ‘the other’ or ‘the system’, creating a Kafka‑esque world of laws and regulations in which people have become obedient implementers/guards, suffocating life itself. Governments, business and the media have become subservient errand boys for the financial world, dragging society down with them, all the while asserting that all this came about democratically and is not, therefore, open to criticism. This explains why, from a democratic point of view, we as society, judiciary, politics and economy have become so incredibly inefficient . For in our pursuit of profit (indirect communication) we seem to have forgotten one little thing: mankind, life itself. Perhaps the time has come to remedy this. I hope this appeal will make it possible to discuss this in court, in parliament and in society. That is the primary objective of this appeal. I would like to conclude with a quote by footballer Johan Cruijff: “You won’t see it until you get it.” Kind regards, De Hutte Holding BV
APPENDICES
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| Antwoord van minister-president J.P. Balkenende | Tweede brief aan minister-president J.P. Balkenende |