Own home with economical lease?

A man claims to have acquired the real property rights to the lease of a house. According to the city court in The Hague, this is incorrect. It is therefore not a question of owning a home.

The case proceeds as follows. A man is a director / sole shareholder in a holding company. This BV owns all the shares in an operating company. This operating company is a tenant of a plot with tennis courts, bowling alleys, a conference center, a catering facility and a staff accommodation.

The operating company gives the man the real ownership of the service home. Together with his cohabitant, the man occupies 68% of the service home. But is this for the man now an income tax owner-occupied home?

The City Court of The Hague answered this question in the negative. According to the court, the man has not acquired the economic ownership of the lease of the house at all. Tenant has not given permission for the transfer of real property at all. But this was a condition under the deed of financial transfer and the deed of tenancy. As a result, there has been no legally valid transfer of the real ownership of the long lease to the husband.

Significance for practice

Different legal concepts meet here. First, financial ownership, second, lease.

Economic property
A person is the economic owner of a home if the change in value relates to him. Under the Income Tax Act 2001, you do not have to fully accept the change in value. It is sufficient if the change in value concerns you to a great extent. It’s 50% or more. If this is the case, the home can be qualified as an owner-occupied home within the meaning of the Income Tax Act 2001. This follows from the definition of art. 3,111 pcs. 1 of the Income Tax Act 2001. The other conditions must of course also be met for the dwelling to be classified as an owner-occupied dwelling.

Basic rent
A house that belongs to someone financially, but which is built on land issued on a longer lease, can be qualified as an owner-occupied home. This also applies to the house owned by the taxpayer on the basis of a land right on the land under lease. If the house is an owner-occupied home, the basic rent guns are tax deductible.

It is also possible that no basic rent is established on the plot, but on the surfaces. In fact, it is a rental situation. That home does not qualify as an owner-occupied home. But if the land rent on that building has been purchased forever, there is financial ownership of the house. In that case, the owner-occupied housing scheme may again play a role. But be careful! It must be a lease situation. Because it is a house on rented land, that house is never an owner-occupied home, even if the house is built at the tenant’s expense and risk. The extension of the owner-occupied housing scheme only applies in the presence of the lease and real building rights. Rent is not included here. So the exception / extension does not apply in that situation.

In the case of basic rent on the subsoil and the house, it is therefore basically a rental situation. But it may be different if the value of the building is refunded. We see this, for example, in the municipalities of Amsterdam and Rotterdam. Buyer / tenant receives the house (apartment) on sublease. No cannon blames on the surfaces. The building has been ‘handed over’ to the buyer because of its economic value. The sublease of the apartments is then the ownership to give the apartment ‘ownership’ to the buyer.

The Secretary of State for Finance has endorsed this situation. This means that the owner-occupied housing scheme can still be used if the conditions are met. This approval is found in section 1.2.2 of the Secretary of State’s Decision of 24 November 2009, No. CPP2009 / 2342M.

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