A Case study for the Netherlands

When a Dutch IT company is ready to hire a great candidate from India as their IT manager there are several aspects that need to be considered before making that decision.  These aspects are: the employment law situation, the tax consequences, and the permit situation and last but not least the relocation itself. 
 
Aspects of employment law when hiring internationals
 
In our practice we often get questions from companies that want to hire someone from abroad to work in the Netherlands.  The first question that needs to be answered is: what employment law is applicable to the employment contract?  Is it Dutch employment law or the law of another country?  A European regulation provides an answer to this question.  The following two rules are the starting points:

1. The employment contract is governed by the law of the country in which, or from which, the employee normally carries out his work, even when he has been sent to work temporarily in another country;
2. If an employee does not normally carry out his work in just one country, the law of the country will apply where the employer is located.

 
Example for rule 1
 
An employee of Indian nationality is employed by a Dutch employer and carries out his work mainly in the Netherlands.  However, occasionally he makes a business trip to the India to attend meetings.  In that case, this employee normally works in the Netherlands and Dutch employment law is applicable to the employment contract, despite the fact that he occasionally works in India.
 
Example for rule 2
 
However, if the same employee works half of the time in the Netherlands and the other half in India, so that it cannot be determined in which country he 'normally' works, Dutch employment law is applicable in view of the fact that, in this example, the employer has its location in the Netherlands.

Expat exception

There is an exception, though, to the two starting points set out above.  If it is in fact apparent 'from the circumstances taken as a whole’ that the employment contract evidently has a closer connection with a country other than the one which, according to the starting points above, would be the designated country, the law of that other country would then apply.  This is also known as the 'expat clause'.
 
An example of this could be an employee of Indian nationality who is sent by his Indian employer to work in the Netherlands for a relatively short period of time, such as two years, but who retains close links with India.  For example, he remains employed by the Indian employer, keeps his house and family in India, continues to pay for Indian (social) insurances and the employment contract contains expatriate provisions (e.g. removal allowances, reimbursement of housing costs, repatriation provisions etc.).  In this situation, it can be argued that the employment contract continues to be more closely connected to India, so that – according to the EU regulation – Indian employment law is or remains applicable.

Priority rules for international employees

Elaborating on the above case, it is important to be aware that, on the grounds of European law again, 'priority rules' exist within each EU member state that always apply, irrespective of the employment law that applies to the employment contract.  The idea behind this is that foreign workers who are working temporarily in, let's say, the Netherlands and where the employment contract is governed by foreign law, will be entitled to certain minimum employment conditions under Dutch law, in so far as these concern aspects such as:

·         Equal treatment;
·         Working conditions;
·         Working hours;
·         Minimum wage and minimum holiday allowance;
·         Minimum number of vacation days.
 

Choice of law when employing international employees

Apart from European law as described above, the employer and employee may include a 'choice of law' in the employment contract by including a statement such as ‘this employment contract will be governed by Dutch law'.  However, if the choice of law is not in line with the law of the country designated under the European regulation, this can lead to a situation where the law of two different countries will govern the employment contract (namely the law decided on in the choice of law and the law designated by the European regulation).  The law of the country designated by the European regulation cannot in fact be 'contracted out' by the choice of law.
 
If two legal systems are applicable, it is the employee who usually benefits from this.  It is therefore important to check carefully which employment law is applicable under European law, before making a choice of law in the employment contract.  In case of doubt, always seek advice in good time.

Tax aspects

The next thing to consider and being aware of is the tax situation:

The taxation of foreign nationals working in the Netherlands strongly depends on their residency status.  Residents are taxed on their worldwide income.  Non-residents are only taxed on income from specific Dutch sources.  A person will become a tax resident of the Netherlands if a permanent bond of personal nature with the Netherlands is established.  This is determined based on factors such as physical presence, family residence, location of a permanent home and registration.  In our example the whole family permanently moves to the Netherlands, so it is clear they will all become Dutch tax residents as of the immigration date.
 
Dutch tax and social security number (so-called “BSN”)
 
As Dutch residents, they are first obliged to register at the Town Hall of the city where they will be living.  After the registration has been completed the Town Hall will provide them with their BSN.  Depending on the Town Hall this could be done immediately or within 1-2 weeks after the registration has been completed.
 
The 30% ruling
 
Since the Indian employee in our example is hired from abroad, he might qualify for a
special tax ruling in the Netherlands, the so-called ‘30% ruling’.  In order for him to qualify for the 30% ruling, the following requirements must be met:

1. He must be recruited from abroad or assigned to the Netherlands;
2. He must have resided in an area more than 150 kilometers outside the Dutch border, in more than 16 of the 24 months prior to his Dutch employment;
3. He must have specific expert knowledge (in practice a minimum salary threshold). 

In our example the first two requirements are met (i.e. hired by a Dutch employer while living in India).  Since our Indian IT specialist is older than 30, he will meet the third requirement if his annual taxable salary is more than €36,705 (excluding the 30% allowance).  Please note that for employees younger than 30 holding a master’s degree, a lower salary level of €27,901 applies.  Since the agreed upon annual salary of the Indian employee amounts to €60,000, all requirements are met.  In that case, as a result of the 30% ruling, the employee is entitled to the following benefits.
 
Tax free allowance up to 30%
 
The most obvious benefit of the 30% ruling is that the Dutch employer may pay the Indian employee a tax free allowance of up to 30% of his original agreed upon gross salary.  In practice, his annual taxable salary will be reduced to €42,000 (70%) and a tax free allowance of €18,000 (30%).  Since the 30% allowance is deemed to cover all extraterritorial costs related to the Dutch employment (e.g. double housing, home leave, etc.), these costs cannot be reimbursed tax free in addition to the 30% allowance.  If the total amount of the extraterritorial costs for the Indian employee would exceed the fixed 30% tax free allowance, it is possible for the Dutch employer to reimburse the actual extraterritorial costs to the Indian employee free of tax. 
 
Partial non-resident taxpayer status
 
The Indian employee in principle qualifies as a Dutch resident taxpayer.  However, under the 30% ruling he can opt to be treated as a partial non-resident taxpayer.  Dutch income tax is levied on three categories of income.  Box 1 taxes (self) employment income and income from a primary residence.  Box 2 taxes profits from a substantial shareholding (at least 5% the shares of a company) and Box 3 taxes the income from savings and investments.  As a partial non-resident taxpayer, the Indian employee will in principle be exempt from taxation on income in Box 2 and Box 3.  Therefore, the Indian employee would only have to pay taxes in the Netherlands on his employment income (i.e. Box 1).  He also remains entitled to the regular personal tax deductions and personal tax credits.
 
Fees for international schools and changing driving license
 
There are two other aspects of the 30% ruling that might benefit our Indian employee.  First of all, if his children attend a qualifying international school, his employer can reimburse the international school fees as a tax-free allowance on top of the 30% allowance.  In addition, if the Indian employee has a valid Indian driving license, he can directly apply for a Dutch driving license without taking a driving test.
 
Dutch income tax
 
Based on the 30% ruling, the Indian employee only has to pay taxes in the Netherlands on his employment income (Box 1).  In Box 1 the following progressive tax rates apply (for 2015):
 

 
Based on his original gross annual salary of €60,000, without the 30% ruling the net annual salary of the Indian employee would be €35,650 (i.e. €60,000 minus 24,350).  As a result of the 30% ruling, his net annual salary will increase to €43,351 (i.e. €42,000 minus €15,549 plus the 30% allowance of €18,000). 
The Dutch tax year runs from 1 January through 31 December.  For his first year in the Netherlands, the Indian employee has to file his tax return before 1 July 2016 (M-Form).  In the following years he has to file his income tax return before 1 April.  The tax assessment is usually issued within six to eight months. 
 
Please note that the Dutch employer will withhold wage tax on the employment income of the Indian employee on a monthly basis in the Dutch payroll administration.  The wage tax that has been withheld serves as an advance payment and will be set-off against the final income tax payable.
 
Dutch social security
 
The Indian employee (and his family) will also be covered by Dutch social security.  Dutch social security can be split in two different categories.  The first category provides benefits to all Dutch residents (e.g. state pension).  The Indian employee has to pay the national insurance contributions, which amount to 28.15% of his taxable income (capped at €33,589).  The second category provides special social security benefits to employees (e.g. unemployment, disability).  The employee insurance contributions are fully paid by the employer. 
 
The Indian employee is also entitled to the Dutch child allowance.  For children aged between 12 and 17 the allowance is €273.78 per quarter / per child. 
 
Finally, it is mandatory for the Indian employee (and his wife) to conclude a Dutch health care insurance.  The insurance needs to be concluded within four months after their arrival.
 
Immigration

With regards to the immigration procedure there a view options: Blue card, highly skilled migrant, the regular work ad residence permit (TEV).  For our case we are going to look at the highly skilled migrant procedure (HSM).  For the Netherlands this procedure is much faster than the Blue card 2-3 weeks versus 2-3 months for applications. 
 
One of the advantages of the HSM procedure versus regular work and residence permit (TEV) for the company is that they do not need to advertise the position in the Netherlands or Europe.  The advantage for the spouse is that they can work without having to obtain a work permit themselves.
 
The spouse can apply for a job and when the spouse is hired they can start to work at once.  This is indicated is also indicated on the back of their residence card.  The thing to remember is that the permit for the spouse is depending on the permit of the employee.  If for one reason or another the contract is terminated this means that the permits for the spouse and children comes to an end. 
 
The basis of the HSM is knowledge and income.  The government has made a number of changes the last few years and continues to adjust the minimum requirement for the income on a regular basis.  This year changes include: monthly income versus year income; the minimum income can no longer include 8% holiday pay but it can include a 13th month.  The full salary has to be paid into a personal bank account from the employee.  There are three groups: 30+ years of age, under 30, and the search year group.   The example we provide below is valid now until the government change this. 
 
The minimum Gross salary requirement per month including 13th month and excluding holiday money is:

The minimum Gross salary requirement per a year including 13th month and excluding holiday money is:

 
Once the visa is approved and the documents obtained from the Dutch embassy the family can travel to the Netherlands. 
 
Local changes ahead:
It is wise to prepare the family for the cultural shock, living circumstances, work ethics, housing situation, schools, food, transportation etc.  We do not have the space to explain all of it here but here are the most important ones.
 
Schools:
Schools are very important for families going on assignments.  In the Netherlands you will find a great variety of schools which include private, public and international schools.  It is wise to make inquiries at the school of your choice ahead of time to find out about possible wait list.  Not all schools have wait list but some do for certain ages.  Your consultant will also know. 
 
Housing:
The availability is there if you have a proper budget.  Please keep in mind that what you see on the internet is not always available once you check things often are different.  Check with a professional they know what is available and what is good and not.  In the Amsterdam area you can find good places from €1,750, and up when you check outside the city the budget can be less.  It is wise to take a specialist with you when negotiations for the rental contract have to be done as well as for the check-in.  A good check-in report can prevent a lot of trouble in obtaining the deposit back.  The key things to check in the contract are the diplomatic clause, are there clauses about mandatory cleaning, (how often by professionals) what are the specific requirement on the deposit etc.  Leegstand, and renewal clauses are also very important.  However that would be a whole other article. 
 
Wilma van der Veer, President of Global Relocation Services BV, has been involved in the household goods and relocation industry for over 26 years.  In her current position she runs the company she has founded.  Prior to this she was the VP for KHZ international movers and prior to that she was a bank manager for over 10 years.
 
Wilma is an active member of the ERC where she received the GMS-T status in 2005-2014.  She is also the chairperson of the ARPN (Association Relocation Professionals Netherlands) the branch organisation of relocation professionals in the Netherlands the ARPN represent the industry towards government and immigration authorities amongst others.
 
Due to her work and the network GRS has around the world Wilma travelled to over 42 countries and lived abroad herself as well.  Wilma has presented on a number of HR conferences and SRRC meetings and is attached to the Expatise academy in the Netherlands as a teacher for the Mobility lessons that HR staff members receive during the HR training.  She recently completed herself the prestigious HR course for Global Mobility Officer and has received the certification valid until June 2015.
 
Global Relocation Services BV
Beechavenue 54-80
1119 PW Schiphol-Rijk
+31-20-6586330 phone
wvdveer.int@grs-relocation.com
www.grs-relocation.com
 
Sanne van Ruitenbeek is attorney-at-law and joint owner of Pallas Attorneys-at-Law in Amsterdam.  Pallas Attorneys-at-Law specialises in employment law and employee participation law. 
 
Sanne represents companies and private individuals in matters relating to collective and individual redundancies/dismissals, employee participation, employment contracts and mergers and acquisitions.  Sanne has a special focus on international employment law and cross border employments.  She started her career in 2006 at a large international law firm. 
 
Sanne regularly gives lectures and has published widely in the field of employment law.  Sanne is a member of the Netherlands Bar Association and the Netherlands Association of Employment Lawyers.  Besides her work for Pallas, Sanne is supervisor of the Amsterdam Legal Aid Foundation. 
 
Pallas Attorneys-at-Law
A: Willemsparkweg 82 - 1071 HL Amsterdam
T: +31 20 470 93 64 / I: www.pallas.nl
M: +31 6 15 96 39 95
E: sanne.van.ruitenbeek@pallas.nl
 
Lyke Apontoweil is a Tax Lawyer and Partner of Hillbrook and has over 17 years’ experience in the field of expatriate tax, international mobility and assignment management.  Before joining Hillbrook in December 2013, Lyke worked for almost two years with Boxx, an expatriate consultancy firm in Belgium. Prior to that, she worked for more than 13 years in the International Assignments group of PricewaterhouseCoopers, managing several large client engagements and providing technical advice and guidance to HR, Tax and Finance professionals on all aspects of assignments including compensation, tax and HR issues.  She was also responsible for the Sales & Business Development of the International Assignments group.  Since 2012 Lyke has been a teacher at the Expatise Academy, teaching the subject ‘Understanding the system of international taxation and the avoidance of double taxation’.

Lyke’s area of expertise is in international tax and social security planning for expatriate individuals, but also has a broad knowledge of immigration/visa and experience with outsourcing projects.  Lyke has a degree in both Civil Law and Tax Law.
 
Lyke Apontoweil | Partner
T +31(0)20 760 4587 | M +31(0)6 1121 0215
Hillbrook | "Officia 1" De Boelelaan 7 VII 1083 HJ AMSTERDAM