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The Court of Cassation has confirmed the transposition of the Antigone rules into tax law by a Judgment of 10 February 2017. These rules have been initially made up in the domain of criminal law to validate the admissibility of evidence unlawfully obtained.

The Court of Cassation had already ruled in this sense the 22 May 2015 (VAT) and the 4 November 2016 (income tax).

In this new case, an individual has been subjected to a VAT assessment related to a pleasure boat. He had asked and then obtained from the Transportation authority ("SPF Mobilité”) a license plate and a certificate of registry ("letter de pavillon”) for his boat. The Transportation authority had relayed the data obtained from the individual to the Tax authorities (SPF Finances), which have submitted the individual to a VAT assessment (the basis of taxation is not mentioned in the decision of the Court of Cassation).

The owner of the boat had defended that nothing allowed the Transportation authority to provide the Tax authorities with the information he gave. The Transportation authority was – as a public institution – bound by a professional confidentiality/ discretion duty and none of the legal provisions which could likely authorize the transmission of information from an authority to other one was applicable in the case at hand (at least, at that time). The Court of Appel of Antwerp took these arguments and cancelled the VAT assessment based on the evidence unlawfully obtained.

Belgium filed an appeal against this decision before the Court of Cassation, which set aside the abovementioned decision: according to the Court of Cassation, the Court of Appeal of Antwerp has not legally justified its decision by excluding the evidence without assessing its admissibility in light of principles of good administration and right to a fair trial.

The Court of Cassation starts its reasoning by this sentence which is become traditional: "there is no general prohibition in tax law against evidence obtained unlawfully”. The objections made against this curious premise, that we share, are well-known. The question here is not to determine if a legal provision prevents the Tax authorities from doing something, but rather if a legal provision allows the Tax authorities to do it in order to tax. Or, the taxation constitutes an invasion of taxpayer’s private estate, which is accepted by the internal law (Article 16 and 170 of the Constitution) and the relevant international law (art. 1st of the 1st additional protocol of the European Human Right Convention, such as Article 8 of the Convention) only if a law permits it. If the invasion is against the law, the tax is clearly not legal and should be annulled.

Time will tell if the judges will take those objections, coming straight into conflict with the case-law of the Court of Cassation.

In the meantime, however questionable this case-law of the Court is, it allows anyway, in some specific cases, to reject the evidence illegally obtained. Thus, the Court of Appel of Gent, before which the case of the unfortunate yachtsman has been sent after quashing, will have to assess if the Transportation authority and the Tax authorities did not come into possession of the information in a manner that was so contrary to what can be expected from an authority complying with the principles of good administration that this use could not be allowed. Or, the Court of Appel of Antwerp has noted that the Transportation authority had breached the professional secrecy. Is it not a breach of the principles of good administration?