Toepassing belastingverdrag met Duitsland i.v.m. coronacrisis

De Staatssecretaris van Financiën deelt het volgende mee.

Op grond van artikel 25, derde lid, eerste volzin van het Verdrag tussen het Koninkrijk der Nederlanden en de Bondsrepubliek Duitsland tot het vermijden van dubbele belasting en het voorkomen van het ontgaan van belasting met betrekking tot belastingen naar het inkomen van 12 april 2012, zoals gewijzigd bij protocol van 11 januari 2016 kunnen de bevoegde autoriteiten in overleg treden om moeilijkheden of twijfelpunten die rijzen met betrekking tot de uitlegging of de toepassing van het Verdrag in onderling overleg op te lossen.

In het licht van de coronacrisis hebben de bevoegde autoriteiten van Nederland en Duitsland overeenstemming bereikt over de interpretatie respectievelijk toepassing van artikel 14 van het Verdrag. Daarnaast is vastgelegd dat Nederland unilateraal zal besluiten ‘Kurzarbeitergeld’, ‘Insolvenz- geld’ of ‘Arbeitslosengeld’ dat een inwoner van Nederland die normaal in Duitsland werkt, ontvangt door de coronacrisis, vrij te stellen.

De Staatssecretaris van Financiën, Namens deze,

De directeur Internationale Zaken en Verbruiksbelastingen

Mutual agreement between the Competent Authorities of Germany and the Netherlands according to the first sentence of paragraph 3 of article 25 of the Convention between the Federal Republic of Germany and the Kingdom of the Netherlands for the avoidance of double taxation signed on 12th of April 2012 as amended by protocol signed on 11th of January 2016

COMPETENT AUTHORITY AGREEMENT

1.   Introduction

Based on paragraph 3 of Article 25 of the Convention between the Federal Republic of Germany and the Kingdom of the Netherlands for the avoidance of double taxation signed on 12th of April 2012 as amended by protocol signed on 11th of January 2016 (the ‘Convention’), the Competent Authorities of Germany and the Netherlands shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Convention.

Given that the coronavirus- (‘COVID-19’) pandemic is a situation of force majeure and considering that the measures taken in response to the pandemic can lead to substantial uncertainty with respect to the tax position of cross-border workers, the Competent Authorities share the view that a mutual agreement as referred to in the first sentence of paragraph 3 of Article 25 of the Convention is warranted.

In this context, the Competent Authorities of the Netherlands and Germany have reached an agree- ment on the application respectively interpretation of Article 14 of the Convention in situations where due to COVID-19 or COVID-19 -related measures a cross border worker works from home or spends days, that would normally be working days, idle at home (i.e. without working).

2.   Days spent working at home

For purposes of paragraph 1 of Article 14 of the Convention (income from employment), days of work for which wages are received and during which the employment was exercised at home (home

office-days) solely due to the measures taken to combat the COVID-19 pandemic by the German or Dutch Government or their local subdivisions, may be deemed as days of work spent in the Contract- ing State where the cross-border worker would have exercised the employment without the measures taken to combat the COVID-19 pandemic. This fiction does not apply to working days that would have been spent either as home office-days or in a third State, independent from these measures. In particular, it does not apply to cross-border workers who, according to their employment contract, are generally exercising their employment at home.

Cross-border workers who make use of the fiction are obliged to apply this fiction consistently in both Contracting States and to keep appropriate records (i.e. written confirmation of the employer which part of the home-office-days were solely due to the COVID-19 pandemic related measures).This fiction shall only apply to the extent that the respective wages for the days spent working at home are actually taxed by the Contracting State in which the cross-border worker would have exercised the employment without the measures taken to combat the COVID-19 pandemic. The cross-border worker accordingly agrees that these items of income will be actually taxed in the Contracting State where he would have exercised the employment without the measures taken to combat the COVID-19 pan- demic. Those items of income shall be regarded as ‘actually taxed’ when they are included in the assessment basis used to calculate the tax.

3.   Days spent idle at home while receiving salary

The Competent Authorities of Germany and the Netherlands agree on the following interpretation of Article 14 of the Convention (income from employment) in situations where a resident of either State who normally works in the other State, spends a day that would normally be a working day idle at home (i.e. without working).

For the purpose of Article 14 of the Convention it is understood that the same work pattern (i.e. the ratio of days worked in the work-state / total working days) is applied as when the employee would have continued working if:

•       an employee spends one or more days that would normally be working days idle at home (i.e. without working) and

•       the employee continues to receive salary from the employer.