Origin and course of the lawsuit

1.1. On 16 December 2016, the interested party and [A B.V.] (hereinafter: the employer) requested
application of the proof rule of Article 10ea, first paragraph, of the 1965 Wage Tax Implementation
Decree (hereinafter: the proof rule or the 30% facility).

1.2. By decision of April 21, 2017, the Inspector rejected the request by a decision open to objection.

1.3. By decision on the objection, dated 21 December 2017, the inspector rejected the objection lodged
against the decision beschikking

1.4. The court dismissed the appeal lodged by the interested party against this in a decision of 28
September 2018.

1.5. The appeal lodged by the interested party against this decision was lodged with the Court of Appeal
on November 7, 2018, supplemented by letter of December 6, 2018. The inspector has submitted a
statement of defence. By letter received on 15 October 2019, the inspector submitted further
documents. A copy of the aforementioned documents has been sent to the other party.

1.6. The hearing took place on 22 October 2019. There appeared on behalf of the interested party, its
authorized representative and on behalf of the inspector Slootweg and Stafnus. An official report has
been drawn up of the proceedings at the hearing, which will be sent along with this decision.

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Facts

2.1. Interested party was born on [..-..-....] in [B] (Jordan) and has Jordanian nationality.

2.2. The interested party came to the Netherlands on 18 April 2014 to follow a study. In that regard, she
was issued with a fixed-term residence permit, which expired on 30 September 2015.

2.3. The interested party completed her studies in September 2015. She then made use of the
'orientation year graduates' scheme to find a job in the Netherlands. In connection with this, she was
given a second residence permit "regular fixed period". This second residence permit gave the right to
stay in the Netherlands from 1 October 2015 to 18 September 2016.

2.4. On 26 April 2016, the interested party entered the employment of the employer. The employment
contract has been entered into for an indefinite period of time. She was then given a third residence
permit for a definite period of time. This third residence permit gave the right to residence with effect
from 26 May 2016 and to work as a highly skilled migrant. The third residence permit was valid until 19
May 2021 at the latest.

2.5. As of August 18, 2014, the interested party has been registered continuously (first in [C] and then in
[Z] ) at a Dutch address in the municipal database. Since her stay in the Netherlands, she has – as the
Court understands – Dutch health insurance and a Dutch bank account. She was obliged to take out
health insurance.

2.6. The interested party has no family in the Netherlands. She is unmarried and does not have a
registered partnership.

2.7. In August 2015, the interested party moved from [C] to [Z]. In November 2016 she moved within [Z]
from [D-straat 1] to [E-straat 2]. Simultaneously with the moves to [Z] and in [Z], [F] has moved to the
new address. According to a copy of the basic register of persons submitted on appeal, the interested
party was still registered at [E-straat 2] in [Z] on 4 December 2018 and there were no other registered
persons on that date.

2.8. The interested party maintained a Jordanian driver's license and a Jordanian bank account. She did
not have a Dutch driver's license. The documents in the case include a statement from the mother of the
interested party stating that she has a separate living space with her own entrance in her parental home
in Jordan. The court documents also include a statement from the (former) Jordanian employer of the
interested party stating that she worked for the company as a 'graphic designer' from October 2013 to
February 2015; in the period September of the year 2014 to February 2015 as a freelancer.

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Dispute on appeal

3.1. As with the court, it is in dispute whether the inspector was right to refuse to apply the 30% facility.
Decisive in this regard is whether the interested party can be regarded as an incoming employee within
the meaning of Art. 10th, second paragraph, part b, of the 1965 Wage Tax Implementation Decree. The
dispute focuses on the question of whether the interested party lived in the Netherlands when entering
into the employment contract with the employer, according to the criterion of Article 4 of the AWR. This
question is answered in the negative by the interested party and in the affirmative by the inspector.

3.2. The parties base their positions on the grounds put forward by them in the documents originating
from them. For what they have added to it at the hearing, reference is made to the official report drawn
up at the hearing.

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Assessment of the dispute on appeal

4.1. Where a person lives is assessed according to the circumstances in accordance with Article 4 of the
AWR. In doing so, all relevant circumstances of the case must be taken into account. According to the
Supreme Court in its judgment of 4 March 2011, no. 10/04026, ECLI:NL:HR:2011:BP6285, BNB 2011/127,
it is, according to settled case law, whether these circumstances are such that there is a lasting
connection of a personal nature between the person concerned and the country concerned. This lasting
bond does not have to be stronger than the bond with another country, so that a residence in any
country does not require that the center of the social life involved is located in that country.
Furthermore, no special significance should be attached to certain (categories of) circumstances, such
as, for example, someone's social or economic ties to a country.

4.2. On the basis of the first residence permit, the interested party would have to leave the Netherlands
after the end of her studies in September 2015. The second residence permit also only gave the right to
stay for a limited period: the year in which she was allowed to look for a job in the Netherlands. That
residence permit could not be changed.

4.3. Prior to entering into the employment contract with the employer, the interested party was
therefore in a position where she had to assume that she was not allowed to stay legally in the
Netherlands for a longer period of time. She would be allowed to stay in the Netherlands for less than
18 months on the basis of the first residence permit, and approximately one year on the basis of the
second permit obtained in 2015.

4.4. A relatively short-term right of residence in the Netherlands that can be assumed not to be
extended – as occurs here before the interested party entered into the employment contract with the
employer – to a certain extent hinders the creation of a lasting bond of a personal nature between the
person concerned and the Netherlands, but does not prevent that in itself.

4.5. The only residence in the Netherlands for following a study for approximately one and a half years
(during the period of validity of the first residence permit) and subsequently looking for a job (during the
period of validity of the second residence permit) is in that situation (the situation with the prospect of
on an expiring right of residence in the Netherlands) is insufficient to be able to speak of such a lasting
bond. This will not change if the person concerned has accommodation in the Netherlands for that
purpose and during the stay fulfills certain obligations that the stay in the Netherlands entails.

The circumstances that have further been established in these proceedings are insufficient to justify the
conclusion that she already had a lasting relationship of a personal nature with the Netherlands at the
time of the conclusion of the employment contract, although until at that time there was a stay here in
the country as referred to in ro 4.4.

4.7. In doing so, the Court of Appeal took into account that taking out health insurance can be regarded
as an obligation as referred to in the last sentence of r.o. 4.5. The Court also considers it plausible that –
as argued at the hearing by its representative – the interested party had registered in the municipal
database because it had been told that this was necessary in order to be able to take out health
insurance and that submitting an M(igration) ticket income tax/national insurance contributions for
2016 instead of a P-form would not have been accepted by the tax authorities because it was registered
in the municipal basic administration.

The Court also sees no reason to doubt the correctness of the statement of the representative of the
interested party at the hearing that the fact that in question 4a of the request for application of the rule
of evidence "Has the employee previously lived in the Netherlands?" has been filled in: “Yes from 01-10-
2015”, is no more than following information from the employer. It would be going too far to draw the
conclusion from such a statement that, in the view of the applicant(s) of the request prior to entering
into the employment contract, there was living in the Netherlands within the meaning of Article 4 of the
AWR.

It is only obvious that the employment contract states the address of the interested party in [Z], since
the interested party was staying there at the time.

Also the circumstances that the interested party maintained a bank account in this country, shared a
house for some time, and did not visit Jordan in the period from her arrival in the Netherlands until the
conclusion of the employment contract (according to the interested party because she was unable to
pay) , are – also in connection with what has been established – of insufficient weight to conclude,
notwithstanding what has been considered under 4.5, that there is a lasting relationship of a personal
nature with the Netherlands at the time of entering into the employment contract.

4.8. The foregoing leads to the conclusion that the interested party did not live in the Netherlands based
on the circumstances at the time of entering into the employment contract with the employer. The rule
of proof can therefore be applied. Application of that rule has been requested with effect from 1
December 2016. However, now that the request was made on 16 December 2016, the proof rule can
only be applied with effect from 1 January 2017 (Article 10ei, second paragraph, of the 1965 Wage Tax
Implementation Decree).

Conclusion

The conclusion is that the appeal is well-founded, that the decision of the district court must be quashed
and that a decision must, moreover, be made as set out below under 'Decision'.

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5. Cost

The Court finds grounds for an order to pay the costs on the basis of Article 8:75 in conjunction with
Article 8:108 of the Awb. With due observance of the Administrative Costs Decree, the Court sets these
costs at an amount of €2,048 (= 4 points for procedural acts on appeal and on appeal x factor 1 for the
seriousness of the case x €512 for the value of one point).

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Decision

The court:

- annuls the court's decision;

- declares the appeal well-founded;
- annuls the decision on objection;
-grants the request to apply the rule of evidence with effect from 1 January 2017;
- orders the inspector to pay the costs of the interested party to an amount of € 2,048;
- orders that the inspector pays to the interested party the court fee paid for lodging an appeal and
appeal totaling (€ 46 + € 126 =) € 172.
The statement was made by Mrs. F.J.P.M. Haas, chairman, P.F. Goes and B.A. van Brummelen, members
of the tax chamber, in the presence of mr. M.H. Hogendoorn as clerk. The decision was made public on
October 29, 2019.

An appeal in cassation against this decision can be lodged with the Supreme Court of the Netherlands
(tax chamber), Postbus 20303, 2500 EH The Hague, within six weeks of the date on which it was sent.
The following must be taken into account:

1. A copy of this decision is submitted with the notice of appeal.

2. the notice of appeal must be signed and state at least the following:

a. the name and address of the applicant;

b. a date;
c. a description of the decision against which the appeal in cassation is directed;
d. the grounds of the appeal in cassation.

A court fee is payable for lodging an appeal in cassation. After the appeal in cassation has been lodged,
the applicant will receive a court registry fee note from the clerk of the Supreme Court.

In the appeal in cassation, the Supreme Court may be requested to order the other party to pay the
costs of the proceedings.