Standard of expertise in 30% tax ruling context
Dutch employers have the option of applying for a 30% tax ruling for employees they have recruited abroad whose expertise is thin on the ground in the Netherlands. Several changes were made to the scheme with effect from 1 January 2012, one of these being that under-30s with a master’s degree have since qualified in terms of the requisite expertise on condition that their salary should exceed a particular level.
The Supreme Court of the Netherlands found itself addressing a dispute concerning the question as to whether a foreign employee on application of the new standard, with which he complied, should – belatedly – be admitted to the 30% regime where his employment contract had commenced before 1 January 2012, at which time he had failed the then prevailing standard of expertise. The Supreme Court ruled that the assessment of a particular employee’s level of expertise should be made on the basis of the facts at the time the relevant employment agreement was entered into, as the time at which the domestic employer had effectively been competing with (prospective) foreign employers, and that this was no different in the event of an application for a 30% ruling being made at a subsequent stage following a regulatory change. The Supreme Court thus found for the Inspector of Taxes, who it decided had rightly turned down the request for admission to the 30% regime as the employee in question had failed the expertise test as per the 2011 rules.