Dutch poker players who have played at PokerStars.eu are not liable for gaming taxation after 30 May 2012. The Amsterdam Court of Appeal (Gerechtshof Amsterdam) reached this conclusion on 19 November 2015 in the case between Freerk Post, represented by his lawyer Jurjen van Daal of Taxwise Lawyers and Tax Advisors, and the Tax Authority (Belastingdienst). An important contribution was made by PokerStars and their local firm, Kalff Katz & Franssen Attorneys at Law.
An important consideration in the levying of gaming tax is whether the provider is established within or outside the Netherlands. The provider is liable for gaming taxation for domestic games of chance. With so-called ‘foreign games of chance’, the player is liable. This can give rise to considerable differences in taxation.
Breach of EU Law
On 11 July 2014 the Supreme Court (Hoge Raad) held that such differential treatment, in relation to live poker tournaments, is in breach of EU law (the free movement of services). Taxwise was also involved in this case. At the start of this year the Supreme Court also confirmed that the taxation of online poker breaches EU law. However, one requirement for this is that the provider of the game of chance is established in the EU.
In the current case the Tax Authority argued that (the provider of) PokerStars.eu was not established on Malta, and therefore not within the EU. The Court of Appeal did not follow the Tax Authority’s reasoning. With the help of the information which PokerStars provided, Taxwise successfully convinced the Court of Appeal that since 30 May 2012 PokerStars has actually been established on Malta. Consequently, from this date poker players are no longer liable for gaming tax.
During a period of six weeks after the decision the Tax Authority can appeal to the Supreme Court. It is not known at this moment whether the Tax Authority will actually do this.