A healthy lunch, provided free of charge to employees, is not a health and safety provision exempted for payroll tax purposes.
Last year we described in our article Healthy lunch taxed with payroll tax a ruling by District Court The Hague. Recently, this decision was upheld on appeal by the Court of Appeal of The Hague.
Meanwhile, the Supreme Court has ruled that the targeted exemption does apply. See our article Healthy lunch yet targeted exempt.
Direct
The Court considers that only allowances and benefits in kind that are a direct consequence of the employer's health and safety policy are covered by the targeted exemption. Pursuant to the Working Conditions Act, this must then concern the health and safety of employees on all aspects related to work. The health and safety policy pursued by the employee may be more far-reaching than that required by the Working Conditions Act. However, the targeted exemption does not apply to benefits in kind and allowances that promote employee welfare in a more general sense. According to the court, the healthy lunches fall into the latter category, which means that the targeted exemption cannot be applied.
Change per 1-1-2022
The employer is also throwing into the fray the change from 1 January 2022 of the targeted exemption for health and safety provisions. We describe this change in our article Health and safety exemptions tightened up. The court rejected the claim that this tightening meant that the exemption was broader before 1 January 2022, which meant healthy lunches were covered.
More than incidental business
The employer also tried to get the lunches classified as “more than incidental business” so that the targeted exemption for the provision of meals would apply. The justification is that the cook, who prepares the healthy lunches, explains to employees the ingredients contained in the meals. In addition, screens have been installed in the canteen explaining healthy eating. The employer believes that this constitutes a business/professional meeting. However, the court decides that the cost of the meals is no more than incidentally evoked by work obligations, making the business nature of the provision only incidental.
We are curious whether this employer will also ask the Supreme Court for an opinion.