Has an employee been provided with a mobile phone, iPad or other tools/equipment by the employer on the basis of the necessity criterion? If this employee leaves the company, that device must be returned to the employer.
Tablets and mobile phones
With effect from 2015, the work-related expenses scheme has been relaxed, and you may now reimburse or provide the following to employees who are exempt from payroll tax:
- tools;
- computers;
- mobile communication devices (and similar equipment).
In practice, of course, this usually involves the reimbursement or provision of laptops, tablets and mobile (smart) phones.
The term ‘tools’ refers not only to a painter’s brush, but also, for example, to a musician’s instrument and a professional photographer’s camera.
Necessity criterion
A condition for the exemption to apply is that the use of the items necessary is in the course of the employee’s employment (necessity criterion). In this context, “necessary’ is defined as “absolutely essential“. This means that, in any event, the items must actually be used in the course of the employment. It is not a requirement that the employment cannot be carried out without the tool or device.
One indication of the necessity of the items provided is that the employer determines the nature or type of tool or equipment to be used, and that the costs are borne by the employer.
Once it has been established that the allowance or benefit in kind meets the necessity criterion, it no longer matters to what extent the tool or equipment is also used by the employee for private purposes.
Nor is it a problem if the employee pays a personal contribution for private use.
If a cafeteria scheme, the necessity criterion is not met.
Returns or refunds
When applying the necessity criterion, the employer must make the payment or provision conditional upon the tool or device being returned as soon as it is no longer necessary for the performance of the employment. Alternatively, the employee must reimburse the employer for the (residual) value of the equipment at that time. This applies, for example, when the employee changes roles or when the employment relationship ends.
If the employee fails to return the device or reimburse its cost, the (residual) value of the device must be included in the employee’s wages from the moment the necessity criterion is no longer met. The employer may include this component of the salary within the work-related expenses allowance (benefits in kind up to 1.2% of the total wage bill are exempt under the work-related expenses allowance; above that threshold, the employer pays payroll taxes at a rate of 80%).
If it transpires that the employer consistently fails to reclaim items reimbursed or provided under the necessity criterion, the Tax and Customs Administration might argue that the conditions for applying this criterion were not met from the outset. In that case, payroll taxes are levied at the time of reimbursement or provision.