A Den Haag tax ruling turns a senior severance deal into a wage-tracing problem.
The dangerous moment in a senior exit often comes after the handshake. A founder sees the agreed amount. The adviser sees the termination paper. Payroll sees another file: wage codes, treaty days, bonus records, equity dates, and the payroll return period. On 2 June 2026, Rechtspraak published Gerechtshof Den Haag's 27 May judgment ECLI:NL:GHDHA:2026:1809. The case concerned an Italy-resident employee, the Netherlands-Italy tax treaty, and article 32bb Wet LB 1964.
The signal has to become readable
The court upheld additional payroll tax assessments for 2016, 2018, and 2019. It tied the Dutch excessive severance levy to wage components that the Netherlands could tax under the treaty. Worldwide wage was not the test wage for this non-resident employee. For owners, that is the practical point: the settlement agreement is only one document in the exit file.
The label is too thin
In many companies, the word severance carries too much comfort. It sounds like one payment, one date, one legal event. Dutch payroll tax can be less tidy. Article 32bb applies a 75 percent final levy to the excessive part of a severance payment granted by a withholding agent to an employee.
For 2026 departures, the Belastingdienst explanatory note brings the levy into view when the test wage is above €700,000 and the severance payment exceeds that test wage. That threshold keeps most ordinary dismissals outside this regime. Still, a small Dutch BV can enter it with one senior file.
Picture a 40-person software company acting as Dutch headquarters for a foreign group. One senior hire lives abroad, works partly in the Netherlands, has bonus rights, used the 30 percent ruling, and leaves after a hard board conversation. The company may be small. The exit may not be.
What the signal changes
At a 75 percent rate, the arithmetic is plain. Every €100,000 treated as excessive can create €75,000 of employer payroll tax. The company may budget the settlement amount, then discover the payroll tax cost later.
Where the wage actually sits
The Den Haag ruling matters because it shifts attention from the payment label to the wage trail. The employee lived in Italy at the end of employment, but that did not settle the treaty question. Under the Netherlands-Italy tax treaty, employment income is linked to where the employment is exercised, subject to treaty conditions.
That is a different discipline from negotiating a goodbye payment. Article 10 Wet LB defines wage broadly as what is enjoyed from employment or former employment. Article 2 can limit the employee concept for certain non-residents where treaty rules allocate wage abroad. Article 32bb then uses that payroll tax world for its own calculation.
The practical question becomes: which wage, which year, which country, which treaty article? A Belastingdienst knowledge-group position for a Germany case used the same operating logic. For article 32bb, the Dutch-attributed wage part counted. A worldwide HR compensation number was not enough.
The goodbye is not always the end
For owner-managers, timing is often the uncomfortable part. Belastingdienst 2026 guidance states that a payment after employment has ended can require a new calculation at that later moment. The payroll tax return period then follows the later payment. HR may see a closed departure while payroll still has a live calendar.
The same-day Den Haag judgment ECLI:NL:GHDHA:2026:1808 adds the equity angle. It concerned share and long-term incentive rights. The court assessed whether rights had become unconditional at termination and detached from the employment relationship. Some benefits were enjoyed later, in 2017, 2018, and 2019.
What founders should check
For a company with RSUs, LTIs, MSUs, or bonus releases, the departure date is not always the wage date. The 30 percent ruling can also sit in the middle of the story. A 2025 Hoge Raad judgment shows that final levy components linked to that ruling need attention in the article 32bb wage file.
Separate the promises from the tax trail
The useful habit is separation. The statutory transition payment is one layer. From 1 January 2026, Rijksoverheid gives the maximum as €102,000 gross, or one gross annual salary if that is higher. A negotiated settlement amount is another layer. The article 32bb employer levy is a third layer, with its own wage and timing rules.
In the small company scene, this means the founder should keep the exit papers from drifting between HR, payroll, the adviser, and the board minutes. The commercial promise, payroll records, treaty analysis, 30 percent ruling entries, equity plan documents, and later-payment calendar need to tell the same story.
If they do not, the real cost may arrive through an assessment or a later return, long after the person has left the building. A statutory director, ordinary employee, secondee, or former employee may also require a different treaty reading before the calculation begins.
The file to build before the bill arrives
A calm exit file starts with the people who hold the facts. HR knows the settlement and the last working day. Payroll knows wage codes and return periods. Finance knows the cash forecast. The adviser should be able to connect the treaty position, equity terms, and 30 percent ruling entries without guessing.
That work is less dramatic than the negotiation, but it is where the Dutch tax cost is found. The settlement agreement says what the company promised. The payroll trail shows what the Netherlands may tax. Between those two sits the bill that owners often meet too late.
Sources
- Toetsloon bij vertrekvergoeding is Nederlands loon – Taxence
- Rechtspraak – Court ruling on Italy-resident employee and article 32bb Wet LB
- Wettenbank – Statutory basis for excessive severance levy
- Belastingdienst – Belastingdienst 2026 calculation guidance
- Belastingdienst Kennisgroepen – Belastingdienst position on non-resident ordinary employees
- Wettenbank – Netherlands-Italy treaty employment income rule
- Belastingdienst Kennisgroepen – Director cases and treaty allocation
- Rechtspraak – Hoge Raad on the 30 percent ruling and article 32bb wage
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