This was decided by the Zeeland-West Brabant District Court in a case which discusses whether transfer tax should be calculated at the 2% rate.
It is established in the case that there has been the acquisition of an immovable property, hence a taxable event for the purposes of transfer tax. It is also not in dispute between the parties that what has been acquired is a plot of land. The notary submitted a transfer tax return, on which this tax was calculated at the normal rate of 10.4%.
Interested party objects to this remittance as it believes that much lower rate of 2% should be applied. The Court firmly dismisses this with a reference to the legislative history, which states: “In any case, the following do not qualify as housing: ( .....) - land intended for residential development.“. The interested party's intention, supported by objective evidence, to build a house on the plot does not alter this.
The Court also rejected the appeal to the definition of building land for VAT purposes. The case law given in the context of VAT cannot be applied to transfer tax.
Next, the “human scale” is brought in as an argument. Of this, the court considers that it can only be applied within the framework of laws and regulations. Insofar as the interested party wants to argue that the non-application of the 2% rate infringes on the undisturbed enjoyment of its property (referring to the ECHR), the Court considers that the legislator did not exceed its wide margin of appreciation in defining the concept of dwelling.
To the extent that the interested party has sought to argue that the levy at the 10.4% rate is an excessive burden on it, it has not substantiated this claim. The Court therefore need not rule on it.
As a whole, a valiant attempt whose chances of success, also given the clear legislative history, did not seem too great. We are curious to see whether the interested party will appeal.