The Court of Appeal of ?s-Hertogenbosch recently decided that a Netherlands resident professional musician, who worked during 1999 for 6 months in Germany, was for the income earned during that period not subject to the Netherlands social security levies (case Court of Appeal of ?s-Hertogenbosch, 8 November 2005, Nr. 02/03335).
The musician was employed by a German resident broadcasting chore from 6 January 21999 until 21 April 1999 and from 23 August 1999 until 24 November 1999. During the other periods the musician received payments from the Netherlands unemployment funds (WW-uitkering). The musician was also leader of three different chores in the Netherlands, with weekly rehearsals evenings and regular performances.
During the years 1996, 1997 and 1998 the composition of the income of the musician was more or less similar. For all these years no Netherlands social security premiums were levied, in the first two years on the basis of a too low income that was subject to the levying of these premiums, and in 1998 after a successful appeal against the imposed tax assessment.
The Court of Appeal decided that during the periods that the musician was employed by a German resident employer and received other income (i.e. non-employment income) from Netherlands sources, he was on the basis of Article 13(1) and 14quater of the Social Security Regulation only subject to the social security system of Germany. The Court also held that the ?subject to premium levying condition? of the then applicable Netherlands Decree on the application of premium levying 1990 could not be applied in cases like this because it was in conflict with the Regulation. The Court held in favour of the taxpayer.
One of the last remarks of the Court was that since the computer software of the Netherlands tax administration are not suitable for making the correct calculations for situations like the one at hand. The Court therefore recommended that the taxpayer contact the Netherlands tax authorities before filing his tax return. The Court assumes that then the tax administration will then offer the right individual service.