Gerecht in eerste aanleg van Sint Maarten, 11-05-2017, ECLI:NL:OGEAM:2017:17, BBZ nrs. SXM201501152 tot en met SXM201501160 (voorheen 74020, 74021, 74039 tot en met 74042, 74044, 74046 en 74048)

Tot de gedingstukken behoren de jaarstukken van belanghebbende over het jaar 2010. De resultatenrekening laat de volgende cijfers zien (in dollars):

Huurinkomsten 127.765

Kosten:

143.563,15 143.563,15 -/-

Netto winst 15.798,15 negatief

“2. GENERAL

Legal form of the company

Taxpayer has not provided me with any administration during this audit.

(…)

The acting managing director of said company is V Corporation N.V. represented by Mr. H.

(…)

The activity of the company is renting of approximately 16 apartments (…)

At the time of the audit it was not known to me how many persons were employed by this company. During a visit on September 10th 2010, I saw a cleaning lady that declared to me that she was working. (…)

Financial administration

(…)

On September 10th 2010, I paid a visit to the Taxpayer. I spoke to a gentleman who identified himself as Mr. K. He indicated to me that he could not entertain my visit because of illness. I proceeded to ask him who was in charge of the apartment complex and he told me that the owner was Q. (….)

Taxpayer did not pay any heed to my numerous requests concerning providing me with the administration. The Taxpayer did not hand over the requested administration during this audit and as requested by me for the last time on January 12th 2012.

(…)

Wage tax-administration

(…)

No payroll administration was handed over to me during this audit. Taxpayer has never submitted any Wage-tax return forms.

(…)

Based on the fact that during one of my visits namely on September 10th 2010, I spoke to someone who declared to me that they were working. I will estimate at a minimal 3 persons employed at this company during the audited period.

(…)

Obligation to safe administration.

Based on Article 43, paragraph 6 of the A.L.L. 2001, the mandatory saving of the administration their records and associated data carriers for 10 years. The investigation determined that the following parts of the records are not kept:

 No bank statements were delivered to me during this period audited;

 No rental Contracts were provided to me during this audit;

 No records of revenue accountability, no proof of earnings for example Cash administration;

 No receipts of expenses;

 No information concerning the legal status of this company for example Deed of incorporation, Letter of wishes etc.

(…)

Opinion of the administration

Based on the foregoing, I conclude that the duty and obligation to retain records pursuant to Article 43, paragraph 2 ALL 2001, had not been fulfilled. In this context, I referred taxpayer to Article 30; paragraph 6 A.L.L. 2001, the so-called reversal of proof. Based on the foregoing, I conclude that the administration in the period audited such serious deficiencies that must be rejected.

(…)

The contact person of this company is Mr. H representing V. (…)

Eventually on July 5th 2011, Mr. H and Mr. T appeared at my office. During this meeting we discussed several issues and made agreements concerning Taxpayer. Among other tings agreed upon, Mr. T would provide me with the complete administration of taxpayer (…). As per the date of this report I have not receive any administration (…). During a meeting with the advisor Mr. T on the January 12th 2012 he indicated that there was not much administration. I requested this administration and he indicated to me that this company was not operating any business activities in the sense to be able to be considered as a business (normal vermogensbeheer).

The balance-sheets and profit & Loss statements pertaining to the years 2008 and 2009 were not presented to me during this audit.

(…)

Wage-tax Accountability

During my visit to the complex I spoke to a Lady cleaning the common area of the property and she declared to be a worker at this company. This company consists of 16 apartments and it is not unreasonable to have person(s) employed to clean the premises.

Based on the fact Taxpayer has indicated in the profit and loss statement of 2010 to have miscellaneous expenses of US$ 8.570 and did not provide any explanation or did not hand over any proof of these expenses during this audit. I will consider these expenses as salaries paid to employees. I will pursue and levy assessments according to article 16 paragraph 1 of the National General Ordinance on Taxes 2001 (…).

Miscellaneous Expenses 2008 2009 2010

Misc. Expenses according to P&L in $ 4.285 8.570 8.570

Converted to Salaries in Nafl 7.627 15.254 15.254

Salaries declared on returns 0 0 0

Difference 7.627 15.254 15.254

The wages mentioned above were paid to persons unknown to me. I will therefore apply the unanimous tariff (53,75%) to calculate the wage tax over the 3 employees. Wage-tax and premiums were not paid over abovementioned salaries.