An employer who charges employees a personal contribution for services provided to them must pay VAT on that personal contribution.
Hourly rate
A foreign temporary employment agency is attempting to avoid this levy. It supplies workers (scaffolders) to Dutch clients. These workers live in Lithuania and are working temporarily in the Netherlands. The agency arranges temporary accommodation in the Netherlands, but workers are not obliged to make use of it. For every hour worked, the agency deducts €3 from the wages of those employees who are provided with accommodation, as a personal contribution towards the accommodation provided.
Income-related
The agency pays VAT on the €3 contribution per hour worked, but subsequently applies to the Tax and Customs Administration for a refund of that VAT. It bases its claim on the judgment Commission v Finland of the European Court of Justice. The Court ruled that this does not constitute a supply of goods or services in the course of economic activity, as the payment depends on the income and assets of the persons to whom the service is provided.
Direct causal link
Zeeland-West Brabant District Court does not agree with the reasoning put forward by the Lithuanian employment agency. The allowance of €3 per hour worked does not depend on the Lithuanian workers’ income or assets, but on the number of hours they have worked. Nor does the fact that a worker occasionally does not work (due to holiday or sickness), but does, without the agency being liable to pay the allowance, make use of the accommodation, does not detract from the direct causal link between the accommodation provided and the allowance of €3 per hour worked.
It is clear that the court’s decision will be referred to the Court of Appeal. However, it is not yet known whether the interested party will lodge an appeal.