Advocate General argues that non-objectors are not entitled to Box 3 legal redress

Christmas Judgment

On 24 December 2021, the Supreme Court ruled that the manner in which the Box 3 levy has been structured since 2017 is contrary to both the prohibition of discrimination (Article 14 ECHR) and the right to peaceful enjoyment of possessions (Article 1 FP ECHR). By way of legal redress, the Supreme Court reduced the income tax assessments for 2017 and 2018 (the years covered by the proceedings) by including only the actual return realised in the levy, but it did not prescribe in general terms how legal redress should be granted.  

Principles of legal redress

The government’s basic principle is that compensation will be offered to taxpayers who participated in the collective objection proceedings covering the years 2017 through 2020, and to taxpayers whose income tax assessment for (one of) those years had not yet become final and conclusive by 24 December 2021. Legal redress is provided through the so-called fixed-rate savings option and has been enshrined in the Box 3 Legal Redress Act.

On 6 June 2024, however, the Supreme Court ruled that this legislation, too, fails to stand up to scrutiny. In particular, the calculation regarding the return on assets other than savings balances continues to be discriminatory. A significant difference in tax treatment between successful and less successful investors continues to exist, without a sufficient justification for this. Subsequently, a rebuttal scheme based on actual returns was added to Box 3 with retroactive effect from 1 January 2017, largely based on the rules set out by the Supreme Court in its judgments of 6 June 2024.

No legal redress for non-objectors

This still does not resolve all the issues though. Proceedings are also still pending regarding the question of whether legal redress should be granted to taxpayers whose Box 3 levy for the years 2017 through 2020 had already become final when the Christmas Judgment was pronounced.

On 20 May 2022, the Supreme Court ruled that the Christmas Judgment qualifies as new case law and that, under Article 45aa of the Implementation Regulations to the Income Tax Act 2001, the Tax Inspector is not required to grant an ex officio reduction of an income tax assessment that was already final when the Christmas Judgment was pronounced. This is only different if the Minister of Finance decided to make an exception. However, on Budget Day 2022, the government announced that it would not do so.  

Collective objection plus

As this decision caused quite a stir and with various interest groups taking the position that not all relevant arguments had been put forward in the aforementioned case, in consultation with the Ministry of Finance it was decided to (once again) turn to the Supreme Court and ask the question whether the refusal of ex officio reduction was justified in the given circumstances. To this end, the so-called ‘collective objection plus’ proceedings were introduced (Article 9.7 of the Income Tax Act 2001), which provide for the possibility of also issuing a ‘collective objection’ order for requests for ex officio income tax reductions.  

Opinion of Advocate General (AG) Pauwels

On 8 May 2026, Advocate General Pauwels delivered his opinion in two cases, which serve as test cases. In a joint annex to these opinions, the AG discussed all the arguments put forward on behalf of the taxpayers. In short, he is of the opinion that the Court of The Hague and the Court of Zeeland-West Brabant were correct in ruling that the Tax Inspector was not required to grant an ex officio reduction to taxpayers who failed to lodge an objection (on time) against the Box 3 levy for the years 2017 through 2020.

The AG started with the argument that, when the assessments were determined, it did not seem worthwhile to lodge an objection and that the government should have better informed its citizens of the need to do so. However, the AG argued that this does not constitute an excusable failure to meet the deadline. The AG also rejected the argument that the old scheme for collective objection (in force until 1 January 2016), under which no objection needed to be lodged, was still applicable.  

Not contrary to the principle of proportionality

The key question to be answered here is the following. Whether the restriction of ‘new case law’ not giving rise to an ex officio reduction (Article 45aa of the Implementation Regulations to the Income Tax Act 2001) is contrary to the principle of proportionality or the formal principles of law. Although the legislative history of the provision provides no clarity on the grounds underlying this exception, other (parliamentary) sources show that these relate primarily to its technical implementation and its budgetary nature. The government has also pointed to legal certainty and the symmetry with additional tax assessments. The AG noted that first and foremost these are legitimate objectives, in the public interest. Given the restraint appropriate for the Court when assessing political and administrative considerations, the AG argued that it cannot be said that the principle of proportionality has been infringed. Nor is there any conflict with Article 1 of Protocol No. 1 to the ECHR.

AG Pauwels also addressed the question of whether, when the assessments were determined, the Tax Inspector could reasonably have believed that the Box 3 regime in force since 1 January 2017 aligned with Article 1 FP ECHR and Article 14 ECHR. Had this not been the case, they should not have refused to grant an ex officio reduction by invoking the exception in respect of ‘new case law’. Still, the AG argued that this situation did not arise. Prior to the Christmas Judgment, it was insufficiently clear that the Box 3 regime in force since 1 January 2017 would not stand up to scrutiny. The decision now rests with the Supreme Court.  

Sources:

• Opinion of Advocate General Pauwels 8 May 2026, 25/02700 and 25/02701, ECLI:NL:PHR:2026:456 and 457
• Joint annex: ECLI:NL:PHR:2026:463