In a recent ruling, in a reference procedure concerning this issue, the Court of Appeal in The Hague concluded that this was not the case in the matter before it.
Share bonus
The case concerns a listed company which operates a share scheme for a limited number of its employees (managers). Under this scheme, employees have received shares free of charge.
The employer wishes to designate this wage benefit as a final levy component under the work-related expenses scheme (WKR). In that case, the wage benefit will not be taxed at the gross final levy rate of 108.3%, but at the final levy rate applicable when the ‘free space’ under the work-related expenses scheme of 80% is exceeded.
(Un)usual
Such a designation is only possible if it is not significantly unusual to designate such a component of remuneration. In tax law, “significantly” is equivalent to: 30% or more.
The Supreme Court ruled in July 2019 that the work-related expenses scheme is not limited to purely business-related or mixed allowances and benefits in kind. The Court must examine (further) whether the allowances and benefits in kind are not significantly higher than is customary in comparable circumstances.
Request for proposals
The Tax and Customs Administration carried out an internal enquiry to provide further evidence. According to the Court, this is not sufficient. After all, even if this is not known within the Tax and Customs Administration, companies may have share schemes for which they have designated the benefits for the WKR.
The Tax and Customs Administration has also carried out an external survey. The Court has ruled that the survey conducted amongst 88 companies is sufficiently representative. Furthermore, the Court has authorised the Tax and Customs Administration to carry out this survey in accordance with its statutory powers. Consequently, the companies are obliged to respond. The outcome of the survey is that half of the companies surveyed award bonuses under the WKR, but that these bonuses are not of the same size.
The Court also makes it clear that the fact that a benefit has been provided or reimbursed for many years does not mean that this is customary. However, the provision or reimbursement is more likely to be regarded as customary if all (or a large proportion of) employees receive the benefit.
It is, of course, possible that the case may be referred to the Supreme Court once again. The time limit for lodging an appeal in cassation has not yet expired.