WILLEMSTAD--The Court in the First Instance of Curaçao fully acquitted (former) President of the Central Bank of Curaçao and St. Maarten (CBCS) Emsley Tromp of intentionally filing income tax returns incorrectly.

 

It is true according to the ruling court that the tax returns were incorrectly filled in, but there is insufficient evidence that Tromp had done this deliberately.

 

The judge determined on the basis of the legal text and the legislative history that, since the introduction of statutory provisions for pension arrangements in 2001, it is in principle no longer allowed to personally manage pension funds. The implementation of the pension entitlements must then take place via an insurer established in one of the former Netherlands Antilles islands unless the Finance Minister has arranged otherwise.

 

Tromp’s pension funds are managed by his foundation. The latter initially left the execution of the pension entitlements to an insurance company (first to Fatum in Curaçao, then to Nationale Nederlanden in the Netherlands), but apparently took a different course at the beginning of 2006.

 

From the beginning of that year, the funds were transferred directly to the foundation and then in November 2007 the pension was bought from the insurance company and the money was to be invested with Bank of America. There is no legal provision in this scheme.

 

The foundation and Bank of America cannot be regarded as insurers, while the US bank is not located in one of the countries that previously formed the Netherlands Antilles. The consequence of this is that the reversal rule - that is a tax rule which means that claims on a pension arrangement do not form part of the wage - no longer applied and that therefore no tax was paid on the pension premiums.

 

According to the verdict, it can be established that Tromp was insufficiently cautious at times, but not that he was aware of the risks. Among other things, the court attached value to the fact that he was assisted by a tax adviser and to indications that the tax authorities did not consider the fiscal scheme unacceptable. The court, therefore, does not consider it proven that Tromp knowingly submitted incorrect tax returns.

 

The probability of errors that Tromp may have made on the purchase cannot, according to the judge, be regarded as significant. In this regard, the ruling points out that the new laws and regulations are complex and that the standpoint of the defence, partly in view of the opinions of tax experts that were introduced into evidence, is fiscally arguable.