11.1 Introduction

In 2012, the Dutch tax legislator introduced the category of religion, spirituality and philosophy of life (in Dutch abbreviated as ‘rsl’) as one of the thirteen legal categories of public benefit (article 5b, paragraph 3, section i of the Dutch General Tax Act). Also, before that, 'church' and 'philosophical' institutions qualified by law for the status of a public benefit organisation (in Dutch abbreviated as ‘anbi’) with the accompanying tax incentives. However, the legislative history contains no explanation as to why rsl belong in the current enumeration of public benefit. It is only noted that church societies have a long tradition of philanthropy and therefore fit, in principle, within the concept of anbi.

In the past two decades, tax jurisprudence has seen an increase in cases involving various religious and philosophical institutions. The issue at stake is usually obtaining or retaining the status of anbi. In contrast to traditional religious, spiritual and ideological institutions (in Dutch abbreviated as ‘rsli's’), it seems to be more difficult for non-traditional rslis to obtain anbi status. Non-traditional rslis in several cases had to go to court to obtain or retain their anbi status. Practice shows that not only litigants, but also the tax administration, the courts and the tax legislator are not quite sure when it comes to tax treatment of rslis.

Rslis form a considerable group of anbis. They make up more than 20 per cent of the total of approximately 45,000 anbis, which the tax legislator has divided into thirteen categories. As of 15 May 2019, the anbi category rsl concerned 10,844 institutions, of which 9946 were religious institutions. Differences in tax treatment between anbi and rsli and between rsli affect not only the institutions but also their founders, members and supporters.

These developments are the reason for this fundamental rights law, civil law and tax study of the anbi category of rsl.

The research question is as follows:

Is there a difference in tax treatment between (a) rslis on the one hand and other anbis on the other; (b) rslis among themselves; (c) religious institutions among themselves, spiritual institutions among themselves as well as philosophical institutions among themselves and if so, is there an objective and reasonable justification for this?

Before answering this question in section 11.8, I will consider my working definitions (section 11.2), the role of rsl in Dutch society (section 11.3), the influence of international and national constitutional rights on the tax treatment of rsl (section 11.4), the choice of legal form (section 11.5), the tax incentives for rsl (section 11.6) and my recommendations (section 11.7). This is followed by my conclusion (section 11.9).