A car registered in the name of a private limited company had no additional tax liability declared in respect of private use. Following an audit of the company’s accounts carried out by the tax authorities, the company stated that no private use had taken place. The car had been used for shopping, courier work and chauffeur services for the benefit of the private limited company’s management. The car key was kept in a key safe at the private limited company’s office. No mileage records were kept.
On appeal, the private limited company argued before the Amsterdam Court of Appeal that the tax authorities had not sufficiently demonstrated that the car had been made available, as it had not been (sufficiently) substantiated that the car was used by employees for private use might be used. However, the Court ruled that it is sufficient for it to be plausible that the car is used by one or more employees. This condition was met because it had been established that the car could be used by the director/shareholder of the private limited company for the purposes of carrying out work. Furthermore, it was established that he had access to the key to the locker in which the car key was kept. As evidence that the director/shareholder had access to the car, the Court also took into account his statement that the car was used to attend football matches. He made that statement (in part) to explain the use of the car at unusual times. The Court points out (for good measure) that attending football matches constitutes an element of private use. The Court does not consider the ban on private use of the car applicable within the company to be sufficient. This ban has not been formally recorded, and it cannot automatically be assumed that the ban would in fact apply to or have any effect on the director/shareholder.
The Court upheld the additional payroll tax assessments that had been imposed.