A foundation rents a property in which a restaurant is situated. On paper, the restaurant is leased to various companies, including a British firm and a Dutch private limited company. According to the foundation, these lessees are responsible for the day-to-day running of the business and the staff. The foundation therefore believes that it is not an employer and is therefore not required to pay payroll taxes. The Tax and Customs Administration takes a different view and has issued additional tax assessments at the anonymous rate.
Additional tax assessment
The Court of Appeal finds that the foundation itself receives the income from the restaurant and also pays the staff’s wages. Furthermore, there is no evidence that any actual financial settlement has taken place with the leaseholders. The Court therefore considers it plausible that the restaurant is in fact operated at the foundation’s expense and risk. The foundation is therefore obliged to deduct payroll taxes from the staff’s wages.
Anonymous rate
Furthermore, the court ruled that the anonymous rate had been correctly applied. The tenants’ payroll records cannot be attributed to the foundation. The foundation did not maintain its own payroll records containing the relevant details of the employees. Consequently, net wages were paid to anonymous employees.