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Insight determining tax residency by the Dutch tax office

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Insight determining tax residency by the Dutch tax office

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Recently the Dutch tax authorities have shared documents which give some detailed information on how they determine whether a person qualifies as a Dutch tax resident. The first important insight is that the tax office only focusses on the facts within the Netherlands.

The importance of the determination whether a person can be seen as a Dutch tax resident is that such Dutch tax resident is taxable for his/her worldwide earned income and held equity. Furthermore Dutch tax residency is crucial for gift and inheritance tax.

In some cases there is no doubt about the tax residency of a taxpayer. But there are also situations where more than one State claims to be the country of residence.

If two States say that a private individual is their tax resident, usually the tax treaty between these States determines of which state that person is a resident. A tax treaty goes beyond any (Dutch) tax residency fiction. For the treaty, the factual circumstances are decisive for determining the tax residency.

Because factual circumstances determine where a natural person is located, a tax residency survey of the Tax authorities must be of a very factual nature. It is also important to note that the inspector has the burden of proof that a person is a tax resident of the Netherlands.

The extend of such tax residency survey can be far reaching. Recently the Museum Card foundation, after a long process, was ordered in a Court case to share information on a Card holder with the tax office to this effect.

Only in case of a change in the living situation, the taxpayer is the person who bears the burden of proof of this change.

The Tax office will first check whether a private individual lives in the Netherlands on the basis of provisions in National laws and regulations. If a person is not a Dutch tax resident based upon Dutch laws, there is no need to rely on a tax treaty or other double taxation scheme.

The documents made public show that the Tax Authorities,
during a tax residency survey, check whether a person has a durable personal relationship with the Netherlands. According to the documents, it is not necessary that the center of social life of the person is in the Netherlands.

Facts that indicate a durable relationship with a state include:
• the person actually has a permanent home;
• the whereabouts of the family;
• the residence of the person himself;
• the presence of social ties;
• the presence of professional or business connections;
• the presence of financial interests;
• spending pattern;
• intention in so far as this is apparent from the facts;
• registration in the basic personal data registration (BRP);
• nationality.
The tax authorities do not apply a fixed ranking for these circumstances, but attach great importance to the sustainable housing and the residence of the partner and / or children. But no fact is in itself decisive.

The inspector must also distinguish between formal and material circumstances. The whereabouts of the family and the actual residence of the taxpayer are material circumstances. Examples of formal circumstances are nationality and registration in the municipality register. The inspector must attribute higher value to material circumstances than to formal circumstances.

Certain published documents state that the Tax office do not have to weigh domestic and foreign facts. Foreign facts and circumstances do not play a role. Only what binds the person as investigated within the Netherlands is important for the inspector.

A private individual is obliged to provide the Tax office with information that may be important for determining this individual’s tax liability. This means that the inspector can also ask to provide information that gives insight into the place of residence. Incidentally, the obligation to provide information also applies to foreign taxpayers. However, this obligation to provide information does not go so far that the Tax office may start a fishing expedition for information.

We often advise on tax residency issues. Please be aware that even if you are not a tax resident of the Netherlands, you may still have a Dutch tax liability as a foreign tax payer. For example when you as a foreigner own real estate located in the Netherlands. In that case an annual personal income tax return for foreign tax payers is to be filed.

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