The benefit in kind for the free provision of electricity and heating has been valued on a lump sum basis for many years. This has partly come to an end as from 1 January 2022.
When an employer or company provides electricity and heating to its employees or directors free of charge, a taxable benefit in kind must be taken into account. This taxable benefit is estimated on a lump sum basis.
For the income year 2022 the following amounts apply:
When the employee or director pays a personal contribution, this may be deducted from the amount of the taxable benefit.
The amounts remain unchanged, although the lump sum valuation will only apply when the person providing the free electricity and heating also provides free housing. In other words, the benefit for the free provision of heating and/or electricity will only be estimated on a lump sum basis provided that heating and/or electricity is used in a property that the same employer or company puts at the disposal of the employee or director.
If this is not the case, the benefit for the free electricity and heating must be valued at its actual value. A personal contribution may still be deducted.
The regulation was amended after a ruling was issued confirming that the lump sum valuation could also apply within the context of so-called cafeteria plans whereby employees are offered the possibility, as part of such a plan, to subscribe to the supply of heating and/or electricity up to a certain budget and whereby they are then only taxed on the lump sum amounts.
Pain points of the new regulation
The question arises whether this new regulation passes the test of the principle of equal treatment. Indeed, from now on, a distinction is made depending on whether or not the employee or director also receives free housing. A distinction is only justified if it is based on an objective criterion and is reasonably justified. This justification is currently lacking. In addition, practical problems arise in connection with determining the actual value. If there is no separate counter, no distinction can be made between private and business consumption. And what if there are solar panels? At the moment it is unclear whether the cost of these must also be included and to what extent.
The adjustment of the lump sum valuation of the benefit for electricity and heating not only leads to probable inequality but also to legal uncertainty and probably also numerous discussions with the tax authorities. Further clarification/fine tuning is therefore necessary.