Uitspraak
1.Geding in cassatie
Belanghebbende, vertegenwoordigd door N.D. Dane, heeft een verweerschrift ingediend.
De Staatssecretaris heeft een conclusie van repliek ingediend.
Belanghebbende heeft een conclusie van dupliek ingediend.
De Staat, vertegenwoordigd door [P2], heeft schriftelijk gereageerd op het hiervoor bedoelde verzoek en zich gerefereerd aan het oordeel van de Hoge Raad.
2.Uitgangspunten in cassatie
the allowances paid on account of occupational disease or accident are deducted from the taxable amounts as they are not considered by Europol as income, salary, emolument, compensation or payment to reward (see Protocol)"and (II) that
"the lump sum in this case and granted pursuant to Article 57 ESR Is an allowance to compensate pain, suffering, damage and loss of ability to perform work and therefore exempted from taxation by Europol (see attachment 8 ESR)".
"salaries or emoluments paid by Europol", within the meaning of Article 10 of the Protocol and consequently, that it is
not subject to a tax for the benefit of Europol. Article 3(g) of the Annex to the Decision of the Management Board of Europol of 16 November 1999 agreeing to the conditions and procedures laid down by Europol regarding taxes applicable to salaries and emoluments paid to Europol staff members for the benefit of Europol1 ("MB decision of 16 November 1999") further indicates that the social benefits listed therein, including allowances paid on account of occupational disease or accident, are
deductedfrom the basic taxable amount.
allowancepaid on account of occupational disease or accident”, construed as a
social benefit, in order to compensate the partial permanent invalidity arising from the two accidents which occurred in 2001 in the course of or in connection with the performance of your duties.
Humblet/Etat Belge, and case C-588/10,
Bourges-Maunoury/Direction des services fiscaux d'Eure et Loir), I noted that they concern either Article 11 (b) of the Protocol on the Privileges and Immunities of the European Coal and Steel Community or Article 13 of the Protocol on the Privileges and Immunities of the European Communities and that the issues at stake concerned the extent to which the "
salaries, wages and emoluments” paid by the Communities to their officials could be taken into consideration by national tax authorities. Contrary to these cases, and as indicated above, the lump sum you received is not considered as "
salaries or emoluments paid by Europol". Moreover, the wording of Article 8, paragraph 2 of the Protocol is different from the hereabove mentioned Articles of the other Protocols insofar as it indicates that "[...]
However, such salaries and emoluments may be taken into account when assessing the amount of tax payable on income from other sources”.
is not considered as “salaries or emoluments paid by Europol”within the meaning of Article 10 of the Protocol applicable to its active, and consequently, that the amount is not subject to a tax for the benefit of Europol. The amount has thus been transferred as a gross amount to [belanghebbende]
and is most likely subject to some form of national tax regime(s).”