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HDBL LEGAL NEWS FOR CHARITIES
Dear Relation,
An ANBI is a special label for a public benefit organization. An organization can only be be designated as an ANBI by the Dutch Tax Authorities if it is almost entirely dedicated to the public interest.
Associations (such as sports, staff, singing, orchestra, or theater groups) and hobby clubs are usually not ANBI. These organizations may, however, be considered social interest organizations (SBBI).

An ANBI has tax benefits, such as:
An ANBI does not pay inheritance tax or gift tax on inheritances and gifts that the institution uses for the public interest.
If an ANBI itself makes donations for the public interest, the recipient does not have to pay gift tax.
An ANBI is eligible for an energy tax refund.
Volunteers who work for an ANBI make a donation to an ANBI under certain conditions.
Donors to an ANBI may deduct their donations from their income or corporate income tax.
To qualify for the deduction for periodic donations, the donor and the ANBI must formalize the donation in an agreement.
Donors to cultural ANBIs are entitled to an additional gift deduction.
But are a donations made by a Dutch taxpayer to foreign institutions regarded as deductible donations for the calculation of the income tax assessment?
The Dutch Supreme Court recently ruled again on this topic on 30 January 2026 (ECLI:NL:HR:2026:136). The taxpayer was a domestic taxpayer under the Dutch Income Tax Act 2001 in 2020. He made donations in 2020 to institutions established in Germany and Switzerland. The institutions did not request the Tax Inspector, pursuant to Article 5b, paragraph 6, of the General Tax Act (AWR), to be designated as a public benefit organization (ANBI) within the meaning of that article by means of a decision subject to appeal. Consequently, they do not meet the condition stipulated in the first paragraph, point 5, of that article (2020 text; the registration condition), and therefore cannot be considered an ANBI for the purposes of Dutch tax law. Under Dutch law (Article 6.35 of the Income Tax Act 2001 in conjunction with Article 6.33, introductory sentence and letter b, and Article 6.32 of that act), these donations do not constitute deductible donations for income tax purposes.
Does EU law preclude refusal to deduct gifts to a foreign institution on the grounds that the foreign institution has not been designated by the tax inspector by decision as a public benefit organization? Any preliminary questions?
The Dutch Supreme Court's opinion is quoted here in full because it is short and interesting for the ANBI management practice:
Assessment of the complaints
4.1
The first complaint is directed against the Court's judgments set out in 3.3.1 and 3.3.2 above. The complaint argues that Article 63 TFEU has been violated, since the Court of Justice's judgment of 27 January 2009, Persche, C-318/07, ECLI:EU:C:2009:33 (hereinafter: the Persche judgment) stipulates that the Netherlands may not refuse tax benefits for donations to institutions recognized as charitable institutions in another Member State solely because the Netherlands would not be able to verify with the beneficiary institution whether the requirements of the legislation of the Member State where that institution is established have been met. According to the complaint, the beneficiary, as the donor, must be able to prove that the institutions referred to in 2 above meet the conditions for recognition as ANBIs. The complaint suggests that the Supreme Court submit a preliminary question to the Court of Justice.
4.2
This complaint fails. Contrary to the Persche judgment, the institutions referred to in point 2 above are not excluded from the ANBI scheme based on the fact that they are established abroad. The registration requirement does not legally distinguish based on place of establishment. Nor does it lead to indirect distinction based on place of establishment. This is not a condition that, by its nature, given its characteristics, affects institutions established abroad more than institutions established in the Netherlands. 3 For the same reason, indirect distinction based on place of establishment cannot be assumed based on the fact that a taxpayer resident or established in the Netherlands might be less inclined to make a donation to a non-resident public benefit organization that is not registered as an ANBI.
4.3.1
The second complaint is directed against the Court's judgment, reproduced above in 3.3.3. In that judgment, the Court rejected the appellant's argument that the application procedure for registration as an ANBI in the Netherlands is unreasonably onerous for an institution established abroad.
4.3.2
For the reasons set out in paragraph 8.26 of the Advocate General's Opinion, the complaint fails insofar as it is based on the argument that the application should have been made in Dutch.
4.3.3
The second complaint also fails insofar as it is based on the argument that the application procedure is laborious, and that this particularly hinders applications by institutions like the one in question, which have few beneficiaries living or established abroad and, moreover, are spread across several countries. The application procedure is equally laborious for public benefit institutions established in the Netherlands, even if such an institution has few beneficiaries living or established in the Netherlands. Regarding the conditions imposed by Dutch legislation in the context of the application procedure, it cannot be said that those conditions can, by definition or in fact, only be met by institutions established in the Netherlands, nor that non-resident institutions are thereby effectively excluded from that scheme because it would be impossible or extremely difficult for them to meet those conditions .
4.4
In view of the foregoing, there is no reasonable doubt that Article 63 TFEU has not been violated. Therefore, the Supreme Court sees no reason to submit a preliminary question, as requested by the interested party.

So a foreign public benefit organization can apply for the designated Dutch ANBI label to enjoy the important tax benefits involved.
2023
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