Before July 2008, Dutch operators of land-based slot machines were liable for Dutch VAT, but not for gaming and betting tax.  However. since comparable casino and internet games were VAT exempt, a Dutch operator filed appeals against his VAT returns, arguing that the principle of fiscal neutrality was broken.

 

In the course of the litigation, the legal discussion came to focus on the games of roulette, blackjack and poker.   In July 2014, the court in ‘s Hertogenbosch ruled that roulette played on a slot machine is comparable with the live game of roulette offered in Dutch casinos. Accordingly, the court ruled that exempting live games of roulette from VAT, while taxing roulette played on a slot machine violated the principle of fiscal neutrality. However, the court also decided that blackjack and poker played on slot machines are not comparable with their corresponding live games.

On 8 May 2015, the advice of Advocate General to the High Court of the Netherlands, Mariken van Hilten, regarding this case was published. The High Court often follows the advice of its advocate generals.   Van Hilten agrees with the lower court’s decision that the different treatment of slot machine roulette and live roulette is against the fiscal neutrality principle.

 

However, contrary to the opinion of the lower court, she advises that slot machine blackjack and live blackjack are also sufficiently similar to warrant the same tax treatment. Live poker and slot machine poker however, are sufficiently different to allow a different tax treatment.

 

Furthermore, Advocate General Van Hilten thinks that the discussion should not be limited to the games of roulette, poker, and blackjack, but instead should be extended to all games of chance. She advises that another court should re-examine the entire case.   Van Hilten’s advice makes it more likely that Dutch slot machine operators will eventually be able to benefit from the outcome of this litigation.

 

A subsequent issue will be that in most cases an objection against the VAT returns will be overdue.   It could be worthwhile to investigate whether, according to general legal principles, the Tax Inspectorate is nonetheless obliged to refund paid VAT.   Frans Duynstee, Taxand Netherlands.

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