This jurisprudence has often appeared shocking, because it leads sometimes to an impossibility of making the limitation period run. If one follows the Court literally, the limitation period will only start to run when the author of the forgery is condemned, or at least when a definite decision is handed down in a tax matter, on the dispute in which the false document was used. Furthermore, the rights of defense appear seriously compromised when it becomes impossible for a taxpayer to support that the document qualified of forgery is not a forgery, because one then reproaches him for making a new use of forgery, simply because it supports that the asserted document of forgery is… true!

In this kafkaian situation, the Cour of appeal of Ghent had asked an interlocutory question to the Cour d'arbitrage as regards the conformity of Articles 73 (a) of the VAT Code and 450 of the Income Tax Code to Article 12 of the Constitution. The taxpayers supported indeed in this matter that the principle of legality of sentences, according to which any person must know the terms in which a reprehensible act can be reproached to him on the penal level, would be violated.

Logically enough, the Constitutional court rejected this interpretation and considered that there was no incompatibility with the constitutional principle of legality of infringements: it is indeed not because the starting point of the limitation period is unknown or not easily determinable that a person is unaware of the cases in which it can be sued.

Thus the Constitutional court did not endorse the point of view of the Supreme Court, which, besides, does not fall within its jurisdiction. However, it is not certain that, in the future, the interpretation given by the Cour de cassation to the concept of use of false documents and the resulting impossibility of limitation will not be condemned by the Constitutional court on the basis of other means.

Obviously, the best solution would be that, as it has been proposed by the working group constituted by the Secretary of State to tax evasion to deliver an opinion on the taxpayer charter, the legislator decide that the use of false documents become an instantaneous infringement, and not, as holds the Supreme Court, a continuous infringement which endures without any intervention of the defendant.

Ronny FAVEL