No change to allocation following tax loss carry-back

Allocation of joint income and assets

Tax partners have discretion in allocating joint income components, such as taxable income from their owner-occupied property and income from a substantial interest, as well as the joint savings and investment base. Insofar as no mutual allocation has been applied, these income and asset components are deemed to be attributable to each of them in equal shares.

The allocation method selected may be changed until the income tax assessments of both tax partners have become final. However, an exception applies if a partner’s tax assessment becomes final following a Supreme Court judgment. In that case, the law permits the mutual allocation to be changed up to six weeks after that judgment. The rationale behind this is that the quantified implications of the chosen allocation only become entirely clear to tax partners after that final judgment is pronounced.

In a judgment handed down on 27 March 2026, the Supreme Court ruled that there is no reason why this should be any different following a Supreme Court judgment in a collective complaints procedure. If the Tax Inspector loses their case in full or in part, they must grant a reduction to eligible taxpayers within six months of the relevant judgment in the collective complaints procedure. In that case, the persons involved may even make an amendment to the chosen allocation up to six weeks after the decision granting a reduction (verminderingsbeschikking) was issued.

Tax loss carry-back

The Supreme Court recently answered the question whether the allocation method may also be changed after applying a tax loss carry-back. In the case at hand, a married taxpayer had incurred a business loss over 2018. The Tax Inspector set off this loss against Box 1 income from 2015. As a result, the entrepreneur could no longer fully use the tax credit. The tax partners then requested permission to amend the mutual allocation. The Tax Inspector refused this because both tax assessments for 2015 were already final. The tax loss carry-back did not change this.

The Arnhem-Leeuwarden Court of Appeal ruled that this case concerns a special circumstance not provided for by the legislature, which leads to an application of the law that is contrary to the general principles of law. However, referring to Advocate General Pauwels’s opinion, the Supreme Court ruled that no such exceptional circumstances are at play. A change to the allocation is therefore no longer possible. The State Secretary’s appeal in cassation was upheld.  

Source:

• HR 12 juni 2026, 24/01291, ECLI:NL:HRL2026:913
• HR 27 maart 2026, 25/02264, ECLI:NL:HR:2026:495