Notifying inability to pay: avoid mistakes that harm your position as a director

1. Establish which business and tax your notification concerns

The official notification procedure concerns a business that is a legal person and is subject to corporate income tax. The Dutch Tax Administration lists payroll taxes, VAT, excise duty and environmental taxes, among others. Therefore do not automatically treat difficulty paying corporate income tax itself as subject to the same notification. The legal form and the specific tax determine which rules your adviser must investigate.

Prepare a separate overview for each legal person, stating its name, tax number, tax type, period, amount due and payment date. A holding company and an operating company may have different obligations. For a fiscal unity, also bring the group documents. This organisation prevents a notification for one business from wrongly being regarded as sufficient for all group companies.

2. Calculate from the correct payment deadline

For tax paid on a return, the Tax Administration requires you to notify within two weeks after the payment deadline. The date when the annual accounts are ready or the accountant discusses the shortfall is therefore not automatically the starting point. If in doubt, immediately establish which return and payment obligation the notification concerns; waiting for a reminder may harm your position.

For an additional assessment there is a separate, limited opportunity: within two weeks after the payment deadline, for the excess over what should have been paid on the return, provided that excess was not caused by the business’s intent or gross negligence. An additional assessment therefore does not automatically provide a fresh opportunity to remedy an earlier failure. Separate the original debt from the additional difference.

3. Give a specific explanation of the payment problems

According to the Tax Administration, a notification made on time but incomplete may be invalid. Use the current official form and answer the relevant questions carefully. Describe what caused the inability to pay, when it arose and which taxes cannot be paid. Keep verifiable facts separate from expectations. An expected customer payment is different from money already available.

Prepare bank statements, an overview of debtors and creditors and a recent cash-flow forecast. Record which information is still missing and why. If necessary, obtain targeted help completing the form immediately. A brief message saying the business is struggling may leave unclear exactly which business, periods and obligations you intended to notify. Also retain the attachments actually sent.

4. Keep evidence of both content and dispatch

According to the Tax Administration, the form can be completed and submitted online or sent by post as a completed PDF. An authorised representative can represent the business. Choose an appropriate route and retain the complete notification with receipt or dispatch details. A draft on your computer does not show that the form reached the Tax Administration; proof of dispatch alone, in turn, does not show its full contents.

Record internally who checks that submission is complete and who answers follow-up questions. Keep the response assessing the notification alongside the original form. If the receipt date or completeness is disputed, promptly engage a tax lawyer. They can compare the relevant correspondence and digital confirmations before events have to be reconstructed solely from memory.

5. Arrange payment and pension obligations separately

The notification expressly does not constitute a request for deferral of payment or remission. Therefore work on a separate payment solution alongside the notification. Identify the correct debts and substantiate what the business can actually afford. Do not assume payments are paused because you have notified inability to pay. Check the response to each separate request and the amount it covers.

If the business is required to participate in an industry-wide pension fund, the Tax Administration points out that a separate notification must be made to that fund. The form has a separate section for this. Notification to the Tax Administration therefore does not prove that the fund has also been informed. Include pension arrears in your record of actions and recipients, with the applicable form and confirmation of dispatch.

6. Investigate the effect of an old or disputed notification

An earlier notification may remain relevant where inability to pay continues, but its precise effect requires assessment of the facts and debts concerned. In a 2024 judgment, the Court of Appeal examined, among other things, different notifications and additional assessments separately. Therefore do not use an old confirmation as an unconditional guarantee for every subsequent debt. Have an adviser assess what was already known and whether circumstances or payment arrears changed in the meantime.

Without a legally valid notification, a director’s evidential position may become considerably more difficult. That does not mean every defence is ruled out in advance. In 2025, the Supreme Court confirmed that all circumstances may be put forward to substantiate that the director cannot be blamed for the failure to notify. Merely stating that you had good intentions or wanted to save the business, however, gives no certainty about the outcome.

7. Prepare for a focused advice meeting

Bring a chronology of payment problems, returns, notifications, changes of directors and contacts with the tax collector. Add the instructions to your accountant, including specific agreements on who would notify. Do not alter original documents afterwards. A separate dated explanation can clarify what you are reconstructing now and what was already recorded in writing at the time.

First ask the lawyer which actions are necessary now and which points need further investigation. An ongoing notification deadline may need monitoring, a question answering or an intended liability decision responding to. Also discuss the distinction between assisting the business and assisting you personally. Your interests may diverge, for example where payments to a director or responsibility for a missed notification are disputed.

8. Fictional example: expected financing and a specific payment shortfall

A fictional company expects a shareholder loan but has not received the money. A tax payment is outstanding meanwhile. The board has a financing plan and thinks that resolves the issue. Preparation instead needs to show funds actually available, promises still uncertain and knowledge at each relevant moment. An expected transfer is not the same evidence as money received.

The board therefore records the payment obligation, available funds, financing contacts and actions actually taken chronologically. It obtains an assessment of notification without waiting for a final promise. This fictional example does not determine whether notification is required, timely or valid. It shows why positive financing prospects must not make the separate legal question disappear from the file.

9. Checklist separating notification, receipt and resolution

Rather than one folder labelled 'payment problems', make an identifiable overview for each legal entity and tax. A later directors' liability decision may require reconstructing knowledge and action at the time. The guide to liability for another person's tax helps recognise your own decision.

Organise a payment arrangement or payment deferment separately and keep its decision with the correct debt. The Dutch-language file tool organises documents but sends no notification, assesses no validity and calculates no notification deadline. Agree who reads each confirmation and follows up missing responses.

• Correct legal entity, tax and period.
• Return or additional assessment, payment date and specific impediment to payment.
• The notification actually submitted, attachments and dispatch or receipt evidence.
• Assessment received, further questions and your answers.
• Separate payment requests, relevant pension notifications and clear responsibilities.