One of the conditions for application of the 30% ruling is that the employee was recruited from another country. Whether this is the case must be assessed according to the facts and circumstances at the time the employment contract was entered into or concluded.
Another condition is that the request relates to first employment in the Netherlands.
An employee came to the Netherlands from India to study here. After completing the study, she worked temporarily. This employment did not meet the salary criterion of the 30% rule. The work did not qualify as training or internship because the course had already been completed. The question was whether the employee was already working for the temporary employer at the time of entering into the qualifying employment contract. The court ruled that this was the case. Invoking the principle of equality, the court put the temporary job on a par with a part-time job while studying. According to the court, such a side job is not an obstacle to the application of the 30% rule.
On appeal, the inspector disputed that there would be internal policy showing that working while studying would be judged differently from working after completing the study in the Netherlands. For the application of the 30% rule, a distinction is made between the situation where a student is recruited after finishing his side job and the situation where the side job has not yet ended.
In the first situation, the side job does not preclude the student from qualifying as an incoming employee. What matters is that the student/employee did not yet live in the Netherlands and was not working in the Netherlands. In such a case, there is no question of a favourable policy but of a correct application of the law.
In the second situation, the side job precludes the student from qualifying as an incoming employee because he was working in the Netherlands at the time the employment contract was concluded.
The court rejected the employee’s reliance on the policy on internships as part of the study programme, because in her case there was no internship. This means that there are no equal cases either. The court of appeal held that the inspector was right to reject the request for application of the 30% rule.
Source: Amsterdam Court of Appeal | case law | ECLINLGHAMS2024179, 23/631 | 22-01-2024