Et02-final.qxp:et

Netherlands
Stand-By Fee Taxable in Residence State under
Art. 15 of the OECD Model
Decision of the Netherlands Supreme Court of 22 December
2006, BNB 2007/97
Introduction
If any of these three conditions are not fulfilled, the Statein which the employment is exercised may tax the salary This article considers the decision of the Netherlands derived from that employment under the second rule of Supreme Court of 22 December 2006.1 The Netherlands Art. 15 of the OECD Model if and insofar as the salary Supreme Court held that the employee’s Residence State can be allocated to the services provided in the Work has the exclusive authority to tax a stand-by fee under Art. 15 of the Netherlands tax treaties that are based onthe OECD Model Convention (hereinafter: the OECD Model), provided that the employee is physically presentin that State whilst he is on stand-by.
The facts
The taxpayer in question (X) resided in the Netherlands Art. 15 of the OECD Model
until 1 November 1998. On that date, she emigrated Art. 15 of the OECD Model divides the taxation right on from the Netherlands to Mexico. In the tax year in ques- the salary of a cross-border employee between the Resi- tion (2000), the taxpayer resided in Mexico. The tax- dence State and the Work State. In particular, Art. 15 of payer was the director and sole shareholder of a Nether- the OECD Model distinguishes three rules in this lands private limited liability company (BV), in respect of which the place of actual management also moved toMexico on 1 November 1998. The BV entered into an (1) The employee’s Residence State has the exclusive agreement of assignment (overeenkomst van opdracht) right to tax the employee’s salary (Art. 15(1), first with a Netherlands resident TV producer for a period of part of the first sentence of the OECD Model). This three years with the option to extend this cooperation.
first rule applies if the employee exercises his The agreement stated that the BV was obliged to put X at employment in his Residence State or in a third the TV producer’s disposal to perform editorial and presentation activities on behalf of a number of TV pro- (2) The Work State may tax the employee’s salary if and grammes (a maximum of 143 episodes per contractual insofar as it is attributable to an employment that is year) for five days a week. A contractual year consisted of exercised in that State (Art. 15(1), end of the first nine months (September to May). A fixed fee was paid in sentence and the second sentence of the OECD nine instalments. The contractual relationship between Model). The Residence State must grant relief from the BV and the TV producer was not recognized for tax double taxation in respect of the salary that is tax- purposes, but, instead, a direct employment relationship able in the Work State (Art. 23A or Art. 23B of the was assumed between X and the TV producer.
OECD Model). This second rule reflects the generalrule of Art. 15 of the OECD Model, i.e. the WorkState is entitled to tax the salary.2 (3) If the following three requirements are all fulfilled Professor in International and European Tax Law, VU University
the first rule revives, which results in the assignment Amsterdam and tax lawyer, De Brauw Blackstone Westbroek, Amsterdam.
of an exclusive taxation right to the employee’s Resi- The author can be contacted at frank.pötgens@debrauw.com.
dence State (Art. 15(2) of the OECD Model): BNB 2007/97. For a discussion of this decision in the Netherlands, see F.
(a) the employee is present in the Work State for a Pötgens, “Volgens de Hoge Raad is een stand-by fee onder artikel 15 OESO- period or periods not exceeding in aggregate Modelverdrag belastbaar in de woonstaat”, NTFR Beschouwingen, 2007/24,pp. 20-24.
183 days in any 12-month period commencing Compare also Para. 1 of the Commentary on Art. 15 of the OECD Model, i.e. “Paragraph 1 [of Art. 15] establishes the general rule as to taxation of (b) the remuneration is paid by, or on behalf of, an income from employment (other than pensions), namely that such income istaxable in the State where the employment is actually exercised” (emphasis employer who is not a resident in the Work State; added). This extract from the Commentary does not further distinguish between the first and second rule of Art. 15. In this respect, the Commentary (c) the remuneration is not borne by a permanent appears to regard the entire Art. 15(1) as one rule, in the context of whichattention is given only to the general rule, i.e. taxation in the State where the establishment (PE) of the employer in the Work services are rendered. Compare also F. Pötgens, Income from International Pri- vate Employment: An Analysis of Article 15 of the OECD Model, DoctoralSeries, No. 12, (Amsterdam: IBFD, 2006), p. 114.
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In 1999, X presented six episodes of a TV show, the 1993 Mexico–Netherlands tax treaty. This employment episodes of which were recorded in the Netherlands. X was exercised at the place where X was physically pre- actually and physically provided services consisting of sent on stand-by. The regular remuneration had to be the recording of these episodes in the Netherlands for allocated to the editorial and presentation activities pro- nine days in 1999. The preparation for these activities vided in the Netherlands during the four days and to the stand-by services provided in Mexico on a time-propor-tionate basis.
The cooperation between the TV producer and X termi-nated on 1 September 2000. As consideration for the ter- The Netherlands Supreme Court, therefore, reversed the mination, X received a severance payment. The TV pro- decision of the Amsterdam Court of Appeal regarding ducer and X also agreed that X would perform the severance payment. In this respect, the Netherlands presentation and editorial activities on behalf of another Supreme Court developed specific rules to allocate sev- company (C). The remuneration that X would receive erance payments (see below). When the Amsterdam from company C would reduce the severance payment, Court of Appeal gave its decision, that Court was unable in connection with which a certain maximum applied.
to take account of these specific rules. Accordingly, theNetherlands Supreme Court remanded the case to a dif- The agreement between company C and X stated that ferent Court of Appeal to take note of these allocation the employment relationship between X and the TV producer would be continued until the contractuallyagreed period of three years lapsed (September 2000). X would be available to perform activities on behalf ofcompany C until the termination of this employment Art. 17 prevails over Art. 15 of the OECD Model agreement. In this respect, X actually and physically pro- First, it is necessary to determine whether or not the vided services on behalf of company C in the Nether- stand-by fee can be regarded as “salaries, wages and other lands for four days (in July and August 2000).
similar remuneration” resulting in the stand-by fee being It is crucial that the Amsterdam Court of Appeal under- classified under Art. 15 et seq. of the OECD Model.3 A stood the facts such that the fee was for the major part stand-by fee must be characterized under Art. 15 of the characterized as a stand-by fee, which X received for OECD Model if the employer attributes the fee and the being available when her employer called on her to pro- employee is obliged to be ready to perform activities that vide services. According to the Amsterdam Court of may or may not be used by the employer depending on Appeal, it appeared from the contractual relationship future events. In these circumstances, and from a that an obligation was imposed on X to be on stand-by.
Netherlands tax perspective, the stand-by fee is consid- This determination and understanding of the facts ered to be enjoyed from an employment within the could not be reversed in the appeal before the Nether- meaning of Art. 10(1) of the Wage Tax Withholding Act 1964 (Wet op de loonbelasting 1964, LB). This may alsohave repercussions for Netherlands tax treaties, as Art.
The dispute
3(2) of the OECD Model refers, with regard to the mean-ing of undefined treaty terms such as “salaries, wages and The tax year in question was 2000. As a result of the facts other similar remuneration”, to the meaning that these that were determined by the Amsterdam Court of have under the domestic law of the Contracting States Appeal, the dispute involved the question as to whether, applying the tax treaty, unless the context requires under Art. 15 of the 1993 Mexico–Netherlands tax another meaning. Only in exceptional circumstances treaty, the regular remuneration had to be allocated does the context require a meaning deviating from the entirely to the small number of days (four days in 2000) in which X was physically present in the Netherlandsperforming presentation and editorial activities (the tax Subsequently, it is necessary to consider whether or not inspector’s view) or whether similar account had to be the income realized by X as a TV presenter could fall taken of the remaining inactivity for which X was paid under Art. 17 of the OECD Model (sportsmen and and which was physically exercised in Mexico (X’s view).
artistes). Art. 17 of the OECD Model prevails as a lex spe- In X’s view, the regular remuneration could only be taxed cialis over the lex generalis of Art. 15, in connection with in the Netherlands in proportion to the days that she wasphysically present in the Netherlands to provide edito-rial and presentation activities.
The characterization of a stand-by fee as income from employment for the purposes of Art. 15 of the OECD Model is explicitly followed in other The tax inspector and X applied similar principles to the jurisdictions. For instance, see the decision of the German Federal Tax Court of 9 September 1970, BStBl. II 1970, p. 867 and US IRS Treas. Reg. Sec-tion 1.861-(4)(b)(2)(ii)(G).
4.
In this connection, reference should be made to the decision of the The Netherlands Supreme Court’s decision
Netherlands Supreme Court of 9 February 2007, BNB 2007/143, involving thebase salary of a professional soccer player that also encompassed stand-by Given the facts as determined by the Amsterdam Court services (being on reserve for a soccer match). The latter element did not alter of Appeal, the Netherlands Supreme Court held that the the fact that Art. 10(1) of the LB, in connection with Art. 3.80 and Art. 3.81 ofthe Personal Income Tax Act 2001 (Wet inkomstenbelasting 2001), applied.
stand-by services had to be regarded as exercising an These provisions relate to the income from employment provisions in respect employment within the meaning of Art. 15(1) of the of wage withholding tax and personal income tax.
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which these provisions, together with the other articles The conclusion of the Netherlands Supreme Court in the relating to income for employment and, according to case in question appears to be supported by Netherlands existing case law of the Netherlands Supreme Court, form civil law (in this connection fiscal law follows civil law, a closed system. Art. 15 of the OECD Model fulfils the role which regards stand-by services as the performance of of a catch-all provision within this closed system.5 employment activities),13 the decisions of the EuropeanCourt of Justice (ECJ)14 and standpoints that have been The Netherlands Advocate General, Van Ballegooijen, in developed by some other jurisdictions (see below). The his Advisory Opinion accompanying the case in question Netherlands Supreme Court had also already alluded to devoted extensive attention to the possible application of the fact that stand-by services must be regarded as pro- Art. 17 of the OECD Model. According to the Advocate viding services as a sportsman within the framework of General, the TV presenter in question should be Art. 17 of the OECD Model. Specifically, the Netherlands regarded as an artist within the meaning of Art. 17 of the Supreme Court, in its decision of 9 February 2007,15 held OECD Model, provided that, and to the extent that, she that a professional soccer player who was on stand-by if performed for an audience. It should also be demon- he was, for example, a reserve for a soccer match still per- strated that this public performance is primarily of an formed activities in his capacity as a sportsman within entertaining nature. The Advocate General in his Advi- the meaning of Art. 17 of the OECD Model.
sory Opinion assumed that X’s performance as a TV pre-senter bore such an entertaining character, but it was not In this respect, German labour law regards stand-by factually determined that X’s performance as a TV pre- services on behalf of an employer without the employee senter had a predominantly entertaining character nor being obliged to remain waiting in a place designated by that the public performance predominated in her activi- the employer (Rufbereitschaft) as performing his profes- ties.6 The Advocate General’s assumption was, inter alia, sional tasks.16 From a tax perspective, this was endorsed based on the fact that her employer, the TV producer, was by the German Federal Tax Court in its decision of 27 a commercially operating broadcasting corporation.
August 2002.17 Considered from a German tax perspec-tive, the activities performed by the TV presenter would The Netherlands Supreme Court and the Amsterdam have to be regarded as Rufbereitschaft.18 Court of Appeal were of the opinion that it could beestablished with sufficient certainty that Art. 17 of theOECD Model did not apply to the services that X pro- See the decisions of the Netherlands Supreme Court of 3 May 2000, vided as a TV presenter. The rationale behind this view is BNB 2000/296; 20 December 2000, BNB 2001/124; 10 August 2001, BNB that a TV presenter does not perform as an entertaining 2001/353; and 5 September 2003, BNB 2003/380.
6.
See, in this connection, the OECD Report, “The Taxation of Income artist.7 As a result, the Netherlands Supreme Court and Derived from Entertainment, Artistic and Sporting Activities“, (OECD, 1987) the Amsterdam Court of Appeal classified the stand-by that is also included in point 4.6 of the Advisory Opinion of Advocate General fee as falling within Art. 15 of the OECD Model.8 Compare C.W.M. van Ballegooijen and D.V.E.M. van der Wiel-Ram- meloo, Loonheffingen (Deventer: Kluwer, 2007), p. 311 and D. Molenaar, Taxa- Stand-by fees
tion of International Performing Artistes: The Problems with Article 17 OECDand How to Correct Them, Doctoral Series, No. 10 (Amsterdam: IBFD, 2005), The following questions arise in respect of income from inactivity, such as stand-by fees, with regard to the sec- The same conclusion is reached by P. Kavelaars, Annotation, BNB 2007/97, point 5. For a different view, see R.A.V. Boxem, Annotation, FED ond rule of Art. 15 of the OECD Model (see above):9 (1) Does the inactivity, i.e. being on stand-by, constitute 10. See in the same sense P. Kavelaars, Annotation, BNB 2007/97, point 2.
11. Para. 1 of the Commentary on Art. 15 of the OECD Model.
(2) In which place is the employment exercised (the 12. Compare the decisions of the Central Appeals Tribunal, i.e. the Nether- lands Supreme Court competent for employee social security and for public (3) To which place of exercise of the employment does services, of 4 February 1992, RSV 1992/215 (an ambulance nurse) and TheHague Court of Appeal, 27 February 2007, TAR 2007/77 (a fireman).
the income need to be allocated when more than 13. Compare Asser de Leede, Bijzondere overeenkomsten III (Deventer: one place can be recognized (“such remuneration as Kluwer) (database), Chapter VII, Para. 2, No. 278.
14. See ECJ, 9 September 2003, Case C-151/02, Landeshauptstadt Kiel v. Nor-bert Jaeger (a doctor) and ECJ, 5 October 2004, Joined Cases C-397/01 to In the author’s opinion, the Netherlands Supreme Court C 403/01, Bernhard Pfeiffer, Wilhelm Roith, Albert Süß, Michael Winter, KlausNestvogel, Roswitha Zeller, Matthias Döbele v. Deutsches Rotes Kreuz, Kreisver- was correct in following the conclusion of the band Waldshut eV (social workers manning ambulances within the frame- Amsterdam Court of Appeal in implying that being on work of a service for medical emergency assistance founded by the German stand-by should be regarded as the exercise of an Red Cross).
15. BNB 2007/143. The tax inspector stated that Art. 17 of the OECD Model employment. Consequently, being on stand-by should could only be relevant if the soccer player actually performed physical activi- be treated in the same way as the actual presentation and ties during a match, whereas Art. 17 would not apply if he was placed on the editorial activities.10 The exercise of the employment bench during that match. The latter could also be considered a form of on-callservices.
occurs at the place where the employee is physically pre- 16. German Federal Labour Court (Bundesarbeitsgericht), decision of 20 sent when performing the activities for which he or she October 2000, BStBl. II 2000, p. 735.
is remunerated.11 The Netherlands Supreme Court, 17. BStBl. II 2002, p. 883. German labour law further distinguishes Arbeits-bereitschaft and Bereitschaftsdienst, which are characterized by the fact that the however, emphasized that the stand-by services in ques- employee is obliged to make himself available at the place of employment or tion differed from the on-call services and readiness for at a place determined by the employer. Under the latter category, the employee work services of, for instance, firemen, and security and is allowed to rest.
18. According to the US IRS Treas. Reg. Section 1.861-4, on-call services must be regarded as the performance of activities.
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As it was established that the stand-by services of the Netherlands Supreme Court27 in respect of sickness ben- employee in question could be regarded as the exercise efits (the original benefits were either based on the of an employment, it was rather easy to determine the Netherlands Sickness Benefits Act (Ziektewet) or, from 1 place where the employment was exercised. The exercise March 1996, on Art. 7:629 of the Netherlands Civil Code of the employment occurs at the place where the (Wet Uitbreiding Loondoorbetalingsverplichting bij Ziekte) employee is physically present in providing his or her requiring an employer to continue paying all or part of stand-by services. In the Netherlands Supreme Court’s the salary during the first two years of the employee’s ill- decision in the case in question, Mexico (the Residence ness) adopted an approach differing from the Nether- State) was the place where the employee was physically lands Supreme Court’s decision in the case in question.
present when performing these stand-by services. Sub- The three questions referred to previously can lead to sequently, the remuneration had to be allocated to the the following results with regard to these other types of presentation and editorial activities performed in the income from inactivity. Compensation for the cancella- Work State on a time-proportionate basis.19 The part of tion of an employment does not result in the exercise of the remuneration involving the stand-by services and an employment and illness, as such, cannot be regarded the preparatory activities that were provided in the Res- as the exercise of an employment either. To allocate the idence State did not fall within the second rule, but, income, a form of “replacement of income” approach was rather, the first rule of Art. 15 of the OECD Model, adopted. In particular, compensation for the cancella- which resulted in the Residence State having the exclu- tion of an employment replaces the income that would sive authority to tax that part of the remuneration. The have been received if the promised employment had not Netherlands Supreme Court took a nine-month period been cancelled, but, instead, had been continued and the as point of departure in allocating the remuneration, as sickness benefits replace the regular salary that the it was contractually agreed that the employee would be employee would have received had he been able to per- remunerated during this period. The nine-month form his normal activities. The “replacement of income” period, therefore, constituted the basis for determining approach results in determining a fictitious place of the denominator of the days-based fraction that is used exercise of the employment and it is to this place the to allocate the remuneration to the employment exer- income should finally be allocated, i.e. the place where cised in the Work State. In the author’s view, the Nether- the employment would have been exercised if the lands Supreme Court correctly differed from its earlier employment had not been cancelled or if the employee decision of 23 September 2005,20 using the calendar year when allocating the salary to the employment exercisedin the Work State on a time-proportionate basis, as the The Netherlands Supreme Court in its decision in the activities were both factually and contractually agreed case in question correctly pointed out that these types of and performed during the entire calendar year.
inactivity differed from stand-by fees. Nevertheless, the“replacement of income” approach in combination with The Netherlands Supreme Court’s decision in the case in a fictitious place of exercise of the employment can be question also conforms with the decision of the German questioned. On the one hand, there is a risk that these Federal Tax Court of 9 September 1970,21 in which an standpoints would not be adopted by other jurisdic- actress, residing in Germany, signed a contract with a US tions, which may result in double taxation or double movie company for the period of 1956-59.22 The actress non-taxation (the German Federal Tax Court in its deci- only acted in two movies in 1956, but was on stand-by sion of 17 October 200328 held that the exercise of the on behalf of the movie company during the remainingperiod. The movie company did not make use of theactress’ services in the remaining period. The GermanFederal Tax Court held that these types of stand-by serv- 19. Compare also the decision of the Netherlands Supreme Court of 23 Sep- ices constituted the exercise of the employment. The employment was deemed to be exercised at the place 20. BNB 2006/52.
21. BStBl. II 1970, p. 867. See Pötgens, note 2, pp. 437-438. For a detailed dis- where the employee was physically present whilst she cussion of this decision, see P. Hellwig, “Die bezahlte Untätigkeit im interna- was on stand-by on behalf of her US employer (the Res- tionalen Steuerrecht”, Deutsche Steuerzeitung, (1978) No. 5, p. 83 et seq. and E.
idence State). Consequently, the entire stand-by fee fell Reimer, Der Ort des Unterlassens (Munich: Verlag C.H. Beck, 2004), p. 128.
22. The case involved the income from employment provision of the for- within the first rule of Art. 15 of the OECD Model, which resulted in the Residence State having the exclu- 23. This point of view is still followed by the German tax authorities by ref- erence to BStBl. II 1970, p. 867. In this respect, compare the resolution of 14September 2006, IV B 6 - S 13000 - 367/06 (Steuerliche Behandlung des Arbeit- Other types of income from inactivity – sickness bene- slohns nach den Doppelbesteuerungsabkommen), point 6.2. 24. BNB 2001/353.
fits and compensation for cancelled employment 25. Decision of 21 March 1986, V-N 1987, p. 299.
26. Decision of 18 January 2006, V-N 2006/34.12.
A comparison can also be made with other types of 27. Decisions of 24 April 1957, BNB 1957/189 and 23 September 2005, income from inactivity. The Netherlands Supreme BNB 2006/52. According to the decision of 23 September 2005, days on which Court in its decision of 10 August 2001,24 (compensa- the employee was unable to perform his regular activities due to illness aretreated as regular working days for the purposes of the numerator in respect tion for the cancellation of an employment) and the of the days-based fraction if it is demonstrated that these days would have decisions of the Amsterdam Court of Appeal,25 the ‘s- been spent in the Work State had illness not prevented the employee from per- Hertogenbosch Court of Appeal26 and (again) the forming his regular activities.
28. BFH/NV 2004, p.161.
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employment continues during the employee’s illness in and (2) the four calendar years preceding the date of connection with which the physical presence of the 1 January in the year in which the employee is dis- employee whilst being sick is decisive) and, on the other, missed.33 The author assumes that this reference period it may be difficult determining the fictitious place of should not be applied in such a rigid manner that it exercise of the employment, in which context the parties remains to be applicable to a case (the case in question), concerned may attempt to give a certain direction to this in which the employment agreement only lasted for location by amending the employment agreement. Prac- three years. It could be expected that the reference tical impediments and questions may also arise, such as: period would be amended accordingly.
How to calculate the 183-day threshold within themeaning of Art. 15(2)(a) of the OECD Model (this Conclusions
calculation could become meaningless if the previ-ously referred to fiction is applied, as it takes the employee’s actual physical presence into account)?29 Netherlands Supreme Court in the case in question.
What is the period that is taken into account to In the author’s opinion, a stand-by fee that is determine where the employment would hypotheti- attributed by an employer residing in the Netherlands to an employee who resided in Mexico Will the Work State change (and has the Residence must be classified under Art. 15 of the 1993 State concluded a tax treaty with the new Work Mexico–Netherlands tax treaty. The stand-by services constituted the exercise of an employment, Will the employee return to the Residence State? which is deemed to be exercised at the place where Will the employee’s status as an employee change to the employee kept him or herself available on behalf of the employer residing in the Netherlands,i.e. the employee’s Residence State (Mexico).
Especially with regard to a compensation for the cancella-tion of an employment, a taxation right is assigned to the Doubt can, however, be cast on the earlier decisions Work State under the second rule of Art. 15 of the OECD relating to sickness benefits and compensation for Model without the employee having performed an activ- the cancellation of an employment. Sickness ity in consideration of the compensation and, moreover, benefits and compensation for the cancellation of the employee did not perform in the Work State.31 an employment are classified under Art. 15 of theNetherlands tax treaties based on the OECD Model, Severance payments
but they are allocated to the fictitious place wherethe employment would have been exercised had it The Netherlands Supreme Court in its decision in the not been cancelled or had illness not prevented the case in question remanded the decision with regard to employee from performing his regular employment the severance payment paid in 2000. It should, however, activities. The approach in these decisions may not be noted that the Amsterdam Court of Appeal was only result in practical impediments and questions, unable to take note of the decisions of the Netherlands but it is also not necessarily adopted in other Supreme Court of 11 June 2004.32 It is interesting to see (neighbouring) jurisdictions, which is, for instance, how these decisions must be applied when the employ- the case for sickness benefits in Germany. In ment agreement only lasted for three years. Specifically, contrast to the Netherlands, Germany adopts the in these cases, it was held that severance payments principle of the physical presence of the employee should be allocated on the basis of the individual’s his- during his illness.34 From this perspective, it would tory of performing labour activities. The basis on which be advisable to pay attention to income from the Netherlands Supreme Court in these cases allocated inactivity either in the OECD Commentary or in a the severance payment to the former Work State (in the specific tax treaty or protocol provision.35 case in question, the Netherlands) was the fractionderived from (1) the part of the entire salary that wastaxable in the Work State by virtue of Art. 15(1) and (2)of the relevant Netherlands OECD-based tax treaties, 29. Pötgens, note 2, p. 421.
30. Compare from a slightly different approach, P. Kavelaars, Annotation, and (2) the total salary received in that period. The per- BNB 2005/57, point 2 and Pötgens, note 2, p. 421.
centage resulting from this fraction determines the part 31. See also P. Kavelaars, Annotation, BNB 2001/353.
of the severance payment that can be allocated to the 32. BNB 2004/344 and BNB 2004/345.
33. Special circumstances may justify departing from these allocation rules.
Work State and/or States. This may be expressed by way In any event, the Netherlands Supreme Court held that if the severance pay- ment was not borne by an employer residing in the Work State or by a PE ofthe employer located in the Work State, the connection between the severancepayment and the labour history in that Work State did not suffice to regard the The part of the regular salary taxable in the Work State in the severance payment as remuneration in respect of an employment exercised in the Work State within the meaning of the second rule of Art. 15 of the OECDModel (Art. 15(1), second part of the first sentence and the second sentence).
This is remarkable because these requirements are already included inArt. 15(2)(b) and (c) of the OECD Model, so that it does not appear to be log- The reference period that is taken into consideration ical to impose them under Art. 15(1).
consists of (1) that part of the year between 1 January 34. German Federal Tax Court, 17 October 2003, BFH/NV 2004, p. 161.
35. For concrete recommendations in this respect, see Pötgens, note 2, and the date on which the employment is terminated, EUROPEAN TAXATION FEBRUARY 2008

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