Some confusion has recently arisen by two different lower tax courts (Breda and Haarlem) regarding the 150 kilometer criterion. The lower tax court in Breda has recently ruled that the 150 kilometer criterion under the new (2012) 30% legislation is not in breach with EU law. Even more recently however the lower tax court in Haarlem has decided the 150 kilometer criterion IS in breach with EU law. The Dutch Supreme Court will have to give certainty on the matter.
The question remains whether the Dutch legislator is allowed to apply this 150 kilometer criterion (please see my other articles on the 30% ruling for this new criterion). As these are only lower tax court decisions, a higher appeal will follow which will give more certainty on the matter. My guess is that more proceedings will follow on this issue, also for those expats under the transitional rules to which the ruling was granted before 2012 / who were first employed by a Dutch employer before the year 2012, but after the year 2006.
Please be informed that the EU commission is still(!) at this time (December 2012) assessing whether it will start an investigation into the 150 kilometer criterion.
For the complete Breda tax court decision, please click this link (in Dutch!):
http://zoeken.rechtspraak.nl/ResultPage.aspx?snelzoeken=t&searchtype=ljn&ljn=BY4061