News - Netherlands

Netherlands - June 2014

New Case Law on 30% Ruling

Recently, new Court decisions were published regarding the conditions for the 30%-ruling to apply at a later point in time than the start of employment in the Netherlands.

Scarce specific skills

One of the conditions of the 30%-ruling is that the employee must have specific skills or expertise that are not readily available in the Netherlands. A Portuguese employee did not satisfy this requirement when starting a job in the Netherlands in 2011. The regulations changed on 1 January 2012 such that whether a person is deemed to have the required specific skills or expertise  is determined on the basis of a minimum salary criterion. In July 2013 the Portuguese employee reapplied for the 30%-ruling on the basis that he met this new requirement. However, his application was unsuccessful because the Dutch Court ruled that whether or not a person is deemed to have the required specific skills or expertise is determined on the basis of the regulations in force at the date on which employer and employee agree on the employment contract. The Court also ruled that the prohibition of discrimination (article 14) of the European Convention on Human Rights was not violated.  The issue will be brought before the Supreme Court.

Commentary

If employees did not qualify under the former regulations but do qualify under the current ones, they can file a new application and file an objection against a negative decision of the tax authorities pending the abovementioned proceedings.

Continuation of the 30%-ruling when changing jobs

When changing jobs, the 30%-ruling can be continued provided a new application is filed in respect of the new employment. This is only possible if the period in between the two jobs does not exceed three months. This has – again - been confirmed by the Dutch Court (Gelderland). In that particular case, it was argued that an employee who exceeded the three-months period only because he was unable to work at the time should be entitled to a continuation of the 30% ruling. However, this argument was rejected.

Resources

Judgement of the Gelderland Court dated 15 May 2014 (in Dutch language)

Judgement of the Zeeland-West-Brabant Court dated 19 February 2014 (in Dutch language)

For further information or to discuss the consequences of the above, please contact Turn on Javascript!, on +31 10 224 6 424 at Loyens & Loeff Rotterdam - www.loyensloeff.com.

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