Dutch expatriate tax facility (30% facility): 150 kilometre test is permitted

On March 4, 2016, the Dutch Supreme Court (Hoge Raad) finally published its verdict on the so-called 150 kilometre test, which was added to the Dutch 30% facility as per January 1, 2012.

Based on this test, an employee only qualifies for the 30% facility if he lived at least 150 kilometres from the Dutch border for at least 16 months out of the 24 months preceding the start of his employment in The Netherlands.  Therefore, employee hired from e.g. Belgium are not eligible for the 30% ruling. In these situations certain actual incurred costs can be granted tax-free.

The case before the Supreme Court focused on the question whether this test can be considered discriminatory under EU law. This verdict was issued after the European Court of Justice rendered its decision in the so-called Sopora case.

The Supreme Court concluded that the 150 kilometres requirement can be justified and is permissible under Dutch tax law. Based on current transitional rules, grants of 30% facilities issued in the period of five years prior to January 1, 2012 could be affected by this verdict also, but further jurisprudence on the latter cases is still expected.

Sources: http://curia.europa.eu/juris/document/document.jsf?docid=162421&doclang=EN and http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:HR:2016:360