Amsterdam Court of Appeal ruled that an independently usable floor is not a separate dwelling.
Temporary rental
The case concerns the owner of a property consisting of 3 floors (basement, ground floor and first floor). The first floor has its own kitchen, bathroom, living room and bedroom and is accessible via a central entrance (but there is also an access door inside). The property owner rents this floor out to tourists via a platform for a few days each time in 2018. He occupies the basement and ground floor himself and qualifies as his own home for tax purposes.
In 2018, the homeowner declared 70% of the WOZ value of the home in Box 1 (owner-occupied housing scheme). He accounted for the other 30% in Box 3 (income from savings and investments), taking into account a value pressure (void value ratio) of 15%. This treatment is based on the premise that the first floor qualifies as an independent part of the property.
The Tax Office counts all floors as the owner-occupied dwelling and calculates the owner-occupied dwelling lump sum based on 100% of the WOZ value. In addition, under the scheme for temporary rental of - part of - the owner-occupied dwelling, the Tax Office calculates 70% of the rental income as income in Box 1 (amounting to €51,680).
Not independent
The court agreed with the District Court's opinion that the first floor remained part of the house, which was available to the owner in its entirety as his main residence. The owner could decide whether to rent out the floor or use it himself. Actual use of the first floor as a main residence is not required. Nor does the circumstance that the first floor is arranged in such a way that it can be rented out separately as living space affect this judgment.
The following circumstances are relevant to the court:
- the property was originally built as a single dwelling and looks like a classic mansion as is common;
- The civil act of delivery refers to one dwelling consisting of the 3 named building layers;
- It follows from the previous circumstances that from a historical and civil law point of view, there is a single dwelling and this is not altered by the fact that part of the dwelling was made suitable for independent rental. In doing so, the Court takes into account that the work to make the dwelling suitable for letting was not of an architectural nature. Essentially, only a cooking facility and an additional door with a lock were provided.
It is not in dispute between the parties that the letting of the first floor qualifies as temporary provision to third parties.