Belanghebbende heeft zich op het standpunt gesteld dat de gevraagde informatie voor hem niet kan leiden tot enige substantiële betalingsverplichting c.q. belastingopbrengst in Nederland, nu hij naar Engels recht failliet is verklaard en hij door de opheffing van zijn faillissement onvoorwaardelijk is bevrijd van al zijn (Nederlandse) belastingschulden die betrekking hebben op de periode vóór 28 november 2012. Daarom is, aldus belanghebbende, de vordering van informatie in strijd met het evenredigheids- en het proportionaliteitsbeginsel. Op grond van de Insolventieverordening moet Nederland de gevolgen van het faillissement in een hoofdinsolventieprocedure naar Engels recht erkennen en respecteren. Belanghebbende verwijst naar de hiervoor onder 2.12 aangehaalde opinie. Voorts is het onder 2.11 aangehaalde Report van belang.
4.8.1
Partijen verschillen van mening over de uitleg van het Engelse faillissementsrecht. De Engelse Insolvency Act 1986 (hierna: IA) luidt onder meer als volgt:
“PART IX
BANKRUPTCY
CHAPTER I
BANKRUPTCY PETITIONS; BANKRUPTCY ORDERS
Preliminary
(…)
Commencement and duration of bankruptcy; discharge
278 Commencement and continuance.
The bankruptcy of an individual against whom a bankruptcy order has been made—
- -
a) commences with the day on which the order is made, and
- -
b) continues until the individual is discharged under the following provisions of this Chapter.
279 Duration
(1) A bankrupt is discharged from bankruptcy at the end of the period of one year beginning with the date on which the bankruptcy commences. (…)
(…)
281 Effect of discharge.
(1) Subject as follows, where a bankrupt is discharged, the discharge releases him from all the bankruptcy debts, but has no effect—
(a) on the functions (so far as they remain to be carried out) of the trustee of his estate, or
(b) on the operation, for the purposes of the carrying out of those functions, of the provisions of this Part;
and, in particular, discharge does not affect the right of any creditor of the bankrupt to prove in the bankruptcy for any debt from which the bankrupt is released.
(…)
CHAPTER II
PROTECTION OF BANKRUPT’S ESTATE AND INVESTIGATION OF HIS AFFAIRS
283 Definition of bankrupt’s estate.
(1) Subject as follows, a bankrupt’s estate for the purposes of any of this Group of Parts comprises—
(a) all property belonging to or vested in the bankrupt at the commencement of the bankruptcy, and
(b) any property which by virtue of any of the following provisions of this Part is comprised in that estate or is treated as falling with the preceding paragraph.
(…)
CHAPTER IV
ADMINISTRATION BY TRUSTEE
Preliminary
305 General functions of trustee.
(1) This Chapter applies in relation to any bankruptcy where either—
(a) the appointment of a person as trustee of a bankrupt’s estate takes effect, or
(b) the official receiver becomes trustee of a bankrupt’s estate.
- -
The function of the trustee is to get in, realise and distribute the bankrupt’s estate in accordance with the following provisions of this Chapter; and in the carrying out of that function and in the management of the bankrupt’s estate the trustee is entitled, subject to those provisions, to use his own discretion.
- -
…)
Acquisition, control and realisation of bankrupt’s estate
306 Vesting of bankrupt’s estate in trustee.
- -
The bankrupt’s estate shall vest in the trustee immediately on his appointment taking effect or, in the case of the official receiver, on his becoming trustee.
- -
Where any property which is, or is to be, comprised in the bankrupt’s estate vests in the trustee (whether under this section or under any other provision of this Part), it shall so vest without any conveyance, assignment or transfer.
(…)
Distribution of bankrupt’s estate
322 Proof of debts.
324 Distribution by means of dividend.
- -
Whenever the trustee has sufficient funds in hand for the purpose he shall, subject to the retention of such sums as may be necessary for the expenses of the bankruptcy, declare and distribute dividends among the creditors in respect of the bankruptcy debts which they have respectively proved.
- -
…)
325 Claims by unsatisfied creditors.
(1) A creditor who has not proved his debt before the declaration of any dividend is not entitled to disturb, by reason that he has not participated in it, the distribution of that dividend or any other dividend declared before his debt was proved, but—
(a) when he has proved that debt he is entitled to be paid, out of any money for the time being available for the payment of any further dividend, any dividend or dividends which he has failed to receive; and
(b) any dividend or dividends payable under paragraph (a) shall be paid before that money is applied to the payment of any such further dividend.
(…)
382 “Bankruptcy debt”, etc.
(1) “ “Bankruptcy debt”, in relation to a bankrupt, means (subject to the next subsection) any of the following—
(a) any debt or liability to which he is subject at the commencement of the bankruptcy,
(b) any debt or liability to which he may become subject after the commencement of the bankruptcy (including after his discharge from bankruptcy) by reason of any obligation incurred before the commencement of the bankruptcy,
(c) any amount specified in pursuance of section 39(3)(c) of the Powers of Criminal Courts Act 1973 in any criminal bankruptcy order made against him before the commencement of the bankruptcy, and
(d) any interest provable as mentioned in section 322(2) in Chapter IV of Part IX.
- -
In determining for the purposes of any provision in this Group of Parts whether any liability in tort is a bankruptcy debt, the bankrupt is deemed to become subject to that liability by reason of an obligation incurred at the time when the cause of action accrued.
- -
For the purposes of references in this Group of Parts to a debt or liability, it is immaterial whether the debt or liability is present or future, whether it is certain or contingent or whether its amount is fixed or liquidated, or is capable of being ascertained by fixed rules or as a matter of opinion; and references in this Group of Parts to owing a debt are to be read accordingly.
- -
In this Group of Parts, except in so far as the context otherwise requires, “liability” means (subject to subsection (3) above) a liability to pay money or money’s worth, including any liability under an enactment, any liability for breach of trust, any liability in contract, tort or bailment and any liability arising out of an obligation to make restitution.”