Continuation of the 30% ruling conflicts with the three months requirement

Source: Conclusion Advocate General, Supreme Court 29 September 2015

A man born in India (hereinafter: X) works since 2009 for an employer in the Netherlands. For this employment the 30% ruling is granted to him. He resigns his job on 1 december 2012. In February 2013 he gets an apartment in the Netherlands. Per 2 May 2013, he joins a new employer.

X has requested an extension of the 30% ruling but his request was rejected. Reason for this is that the period between the end of employment at the old employer and the commencement of the new employment exceeds three months.

Change of employer with 30% ruling: If you have already obtained the 30% ruling and you would like to change employer, then you can still re-apply through the new employer as long as you were not unemployed for more than 3 months between jobs.

Court Gelderland (No. 13/7548, ECLI: NL: RBGEL: 2014:3133) and in appeal Court of appeal Arnhem-Leeuwarden (No. 14/00586, ECLI: NL: GHARL: 2015:2043) have concluded that the appeal and higher appeal of X are unfounded. Continuation of the 30% ruling conflicts with the three months requirement. According to the Court of appeal, the applicable legislation gives no room to proof otherwise that X posseses scarce specific expertise. The ruling also doesn’t give room to opt for a chosen period during which the employee is not available on the labour market to search for housing, according to the Court. X has appealed in cassation before the Supreme Court.

Advocate General Niessen states that the request of X for continuation of the 30% ruling, should be assessed based on the legislative text which was applicable in 2013. According to the Advocate General it is clear from the case-law of the Supreme Court that the 30% ruling doesn’t give room to proof otherwise that any interested party possesses the required scarce and specific expertise. In addition, the legislator deliberately chose a flat-rate scheme and a non-substantive assessment of the three month term is in line with that.

Conclusion: the appeal is unfounded.

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