Tax advisor liability: Get the right to compensation

Questioner

I had my tax return done by a tax advisor for the years 2014 to 2017. Now I have been audited and have been told that I am not entitled to gifts that were submitted to the tax advisor. As a result, I have to pay back the wrongful tax that I received. My tax advisor could have known that I was not entitled to this. Because he could do more research if he had doubts. By knowing the law and requesting a contract from me for more information, about my volunteer work. Now that I have to pay these amounts of approximately €2500, I am of course very upset. My question is therefore, can I recover this financial damage from him? Because I have already received these amounts, I also assume that I was allowed to keep it and I assume that he knows how to file the declaration and knows what we are or are not entitled to. It may not be damage, but I have to pay back, which I obviously did not take into account. Of course I discussed this with him, why he did not know, why I am not entitled to a tax refund, regarding my volunteer work. But he informed me that, according to him, anyone can give it up, now that I have invested time in it. I found out that I am not entitled to it, because my contract does not state that I would receive compensation for my work and that I then waive it. In my opinion, my tax advisor should have known this, so that I do not now have my unexpected assessments. I understand that I can hold him in default. But I want to be sure that I can hold him liable for this before I send him a registered letter. I hope to hear from you soon,

Lawyer

The tax advisor has a duty of care with regard to the tax return. He must act as a reasonably acting and reasonably competent advisor. From your explanation I gather that he could have done more research into the tax return in case of doubt, but he failed to do so. You have provided the correct information, so you cannot be blamed for this. In order to hold the advisor liable, there must actually be damage such as fines, default interest, etc. A refund received can in principle also fall under this. I advise you to hold the advisor liable. If you would like assistance with this, please do not hesitate to contact me. To do so, click on the link next to this answer. The legal costs incurred by you must be reimbursed by the advisor if liability is established.

Questioner

Thanks for the answer, but unfortunately this does not fully answer my question. Before I start legal proceedings, I would first like to know whether I can hold him liable for the incorrect submission of my tax return, which means that I now have to pay back tax. You state that it must first be determined whether my advisor is liable. And that there must be damage such as fines, default interest, etc. There is only a subsequent assessment. Can I hold him liable for that too? After a quick search on the internet, I found the following ruling by the Court of Appeal in The Hague. https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHDHA:2015:341 Does this ruling mean that I have no point against my advisor or is this not comparable to my situation? I hope you can provide some clarity.

Lawyer

For a supplementary assessment, you can also hold the advisor liable if it turns out that he acted carelessly when filling in the tax return. The damage must then also be attributed to him, for example if you have to pay back too much due to an incorrect tax return. The ruling you found is in principle comparable, but does not mean that you cannot hold the advisor liable. This depends, for example, on the circumstances, (written) agreements and the shortcoming that can be attributed to the advisor. If you would like to discuss this, you can also contact me directly.