With regards to the Dutch Supreme Court decision of 24 December 2021, also known as the “ Kerst”, in which a mass objection procedure against the treatment of income from Box 3 (Income Tax) for the years 2017 and 2018 was handled. A plea was made to levy the tax on actual returns instead of fictitious returns, because this is considered to be in violation of Art. 1 EP in combination with Art. 14 ECHR.
The Dutch State Secretary of Finance has published the Box 3 Legal Restoration Decree (“The Decree”) on 28 June 2022. The decree sets out the new calculation of the savings and investments tax credit in Box 3 for income tax and national insurance contributions for the years 2017 up to and including 2022, which have not yet been irrevocably determined.
This Decree offers a legal remedy to three groups of taxpayers: timely objectors, taxpayers whose 2017-2020 assessments have not yet been irrevocably determined on 24 December 2021, and taxpayers whose assessments have not yet been determined. The Decree has been categorized in four sections/ steps.
Section 1 divides the assets and liabilities into three asset classes; Savings (bank balances), debts and other assets.
Section 2 calculates the actual return of the assets, distinguishing between Savings, other assets and debts. In order to match the actual return as closely as possible, a separate fixed rate of return applies to each asset category. F.e. the rates for 2021 are as followed; Savings has a rate of 0.01%, Debts of 2.46% and Other Assets of 5.69%. In this section Decree defines the target groups.
Section 3 of the Decree describes in four steps how the new savings and investment benefit is calculated according to article 5.3 of the PITA.
Section 4 describes the legal protection of taxpayers who disagree with the decision.
The decision aims to implement the Decree in an automated manner and will enter into force on 1 July 2022.
 Hoge Raad van 24 december 2021, 21/01243, V-N 2022/2.3 (het Kerstarrest)
 European Convention on Human Rights
 Ministerie van Financiën. (2022, 30 juni). Beleidsbesluit rechtsherstel box 3. Kamerstuk | Rijksoverheid.nl. Geraadpleegd op 4 juli 2022, van https://www.rijksoverheid.nl/documenten/kamerstukken/2022/06/30/beleidsbesluit-rechtsherstel-box-3
 Par. 3.1 Ministerie van Financiën. (2022, 30 juni). Beleidsbesluit rechtsherstel box 3. Kamerstuk | Rijksoverheid.nl. Geraadpleegd op 4 juli 2022, van https://www.rijksoverheid.nl/documenten/kamerstukken/2022/06/30/beleidsbesluit-rechtsherstel-box-3
NAZALI TAX & LEGAL