Didactics dictates that before discussing a superlative form, the basic form should first be explained. The best thing, therefore, is to start with the concept of ‘legistic negationism’, which is not included in the Oxford dictionary. ‘Negationism’, which is included, stands for the denial or extreme minimisation of generally accepted historical events. In Dutch, the term ‘formal legistics’ is synonymous with ‘legislative technique’. Apart from the fact that, in my personal opinion, it sounds stupid, it is as vague as formal legistics. I’d therefore rather stick to the latter. The terms refer to the rules that must be observed when drafting laws. The combinaton of those two concepts then infers that the legislator simply ignores obvious principles.

Once upon a time, there was a taxpayer who, according to the letter of the law, responded two days late to the tax administration. Out of a sense of justice, this knight in the order of taxpayer protection went to the Constitutional Court, to point out that the applicable deadline, which was notified to him by post, could not start on the date of dispatch, but rather on the day he found the letter in his letterbox. A clear-cut argument, wouldn’t you say? Indeed, a valid point, the Constitutional Court ruled. This has since become established case law of the Court. Whenever the law provides for a notification to be sent by post, the period must be deemed to commence on the third working day after dispatch. Where the legislator is rebuked, the law is amended. But the tax laws are riddled with such deadlines. One would expect legislators to take the initiative to systematically incorporate this historic acquis into legislation. But for some unknown reason they don’t. As a result, tax legislation knowingly and intentionally contains unconstitutional provisions. It is only when a taxpayer stumbles over such a provision and shows the courage to undertake a long and lonely journey to the Constitutional Court that the provision is amended. Hence, legistic negationism.embarrassed by the application, but they are bound hand and foot by the administration’s position or, worse still, the lack of clarity in this regard. This accusation is therefore not addressed to the individual official, but to the system, the administration.

It is only when a taxpayer stumbles over such a provision and shows the courage to undertake a long and lonely journey to the Constitutional Court that the provision is amended.

Hence, legistic negationism.

Anyone who thinks this is the worst democratic reproach that can be made is wrong. There’s even worse. While in ‘negationism’ it is the legislature that does not act diligently and in accordance with the principles of good administration, the superlative form refers to the conscious disregard of established case law and sacred principles by the executive power. Saying that the examples are countless would be an insult to the truth. Yet, it doesn’t matter much. Take the saga of Dutch pensions, where the Court of Cassation has repeatedly ruled against the tax administration. And yet the administration does not want to budge. It even goes so far that a taxpayer who won his case in the previous year has received an incorrect assessment again for the following year. That can happen, administrative oversight, can it not? But even after the taxpayer clearly informed the administration of the court decision for the previous year, it did not want to budge from its apparently incorrect position. Regarding the withholding tax with France, the so-called FBB cases, the tax administration has clearly bitten the dust before the Court of Cassation. And it does not accept this clear, final decision that is not open to interpretation. The Constitutional Court ruled in the context of tax proceedings that the dismissal of a criminal complaint must be equated with the end of criminal proceedings and that this must be the starting point of the limitation period. The administration refuses to apply that principle.

In each of these cases, the executive officials have been extremely embarrassed by the application, but they are bound hand and foot by the administration’s position or, worse still, the lack of clarity in this regard. This accusation is therefore not addressed to the individual official, but to the system, the administration.

This superlative form is also legally defined. This is called extortion: it is the deliberate imposition or collection of an obviously incorrect levy or tax. Article 234 of the Criminal Code expressly makes it a punishable offense. It comes close to abuse of power. One should be wary of using criminal law concepts or accusations too quickly, but sometimes a complaint against unknown persons would not be out of place in this regard. And strangely enough, that would even be welcomed by many upstanding tax officials.