Burden of proof Dr. P.J.M. Bongaarts Vice-president Court of Appeal ‘s-Hertogenbosch, in the Netherlands contribution to discussion at EATLP congress held 3 June 2011 at the University of Uppsala, Sweden

Significance burden depends on Personality of the judgenature Legal culturenurture Main valuessociety Burden of prooflegislature Standard of proofjudiciary What would you prefer?

Personality of the judge (1) Nature Active judge Brings up new facts to add to the file Brings up new legal issues Also uses intuition to weigh evidence Seeks proof to justify the finding of a fact Passive Judge The file is the responsibility of the parties Does not discuss legal issues Only uses judicial rules of proof Seeks proof to the balance of probabilities

Personality of judge (2) Nature Active judge Seeks witness and expert opinion on facts Trusts and accepts oral statements of witness and experts Has experience and a personal interest in the case, Seeks consensus. Passive judge Leaves fact finding to parties Only accepts written and duly signed statements of witness and third parties Has no experience and only a general interest in the case. Decides the case, in writing.

Legal culture (1). History Common law type No specialised tax judges in Higher Courts Oral culture. No preliminary hearing, small file, everything happens during session. Oral statements of parties and their witness allowed Civil law type Specialised tax judges, also in Higher Courts Bureaucratic culture Preliminary investigation, large file, everything recorded in writing Only written statements of witness allowed

Legal culture (2) History Common law type Decisions: Three separate decisions Each extensively rendering facts, minority opinion(s), and the various grounds Civil law Type Decisions: One brief collegiate decision (solution), rendering the one bearing ground agreed by all judges, No additional arguments.

Main values Society All facts begin in the hands of the taxpayer. Taxpayer has collective duty His obligation to reveal the truth is unlimited State has extensive powers. Truth can always be construed or found. Taxpayers privacy should be protected. His obligation to reveal is limited legally.

Burden of proof Legislature Burden Tax assessment stands good unless proven wrong by facts Presumption of correctness Burden stays with taxpayer all the way, no shift of the burden Burden Tax assessment stands wrong unless proven right by facts Presumption of ‘wrongness’ Shift of the burden possible on grounds of reasonability

Standard of proof Judiciairy To the balance of probabilities An analytical project using percentages of probabilities Sufficient to justify the finding of a fact An intuitive process towards inner conviction

What do you prefer? Lets take an example. ‘Brady versus Lotus Group Car Companies (1987) STC 184 Did Lotus receive more payments from Delorean through Panama than it had declared? You choose:

What would you prefer? Type of judge, –active specialist? Or passive generalist? Legal environment –Tax court, bureaucratic culture? Or general court, oral culture? Main values –Focus on collective duty? Or on privacy protection? Burden of proof –Presumption of correctness or of wrongness. Shift of burden? Standard of proof –To the balance of probabilities. Or to justify the finding of a fact. Format and extent of decisions, –Grounds of each of the judges? Or one brief collegiate solution.