On 18 September it was budget day (Prinsjesdag) in the Netherlands on which the Dutch government released several bills of law containing tax law proposals. In this Tax Alert we will provide you with a summary of the main proposals relevant for international businesses.
1. Implementation of ATAD 1: introduction of earnings stripping rule and CFC-regime
On 12 July 2016 the Anti-tax Avoidance Directive (‘ATAD 1’ or the ‘Directive’) was adopted by the European Council, obliging member states to adopt it ultimately by 31 December 2018 (subject to certain exceptions). See also our Tax Alerts of 23 June 2016, 20 July 2017, 12 October 2017 and 27 February 2018. The Dutch legislative proposal to adopt the Directive has now been released. In line with previous policy letters, the legislative proposal includes a rule to essentially limit interest expense deductions to 30% of the EBITDA (earnings stripping rule) and a CFC (Controlled Foreign Company) regime.
Earnings stripping rule
The proposed earnings stripping rule limits the deduction of the balance of interest amounts to the highest of (i) 30% of the adjusted profit (gecorrigeerde winst) or (ii) EUR 1,000,000. The balance of interest amounts is defined as the amount of interest expenses on loans payable reduced by the amount of interest income received on loans receivable, whereby the interest expenses and the interest income should be deductible or taxable respectively absent the earnings stripping rule. The balance cannot be negative and does not include interest amounts that should be allocated to a permanent establishment and are exempt from Dutch corporate income taxation under the object exemption. The adjusted profit is defined as the taxable profit as determined absent the earnings stripping rule, subject to certain adjustments.
To the extent the balance of interest amounts, due to the application of the earnings stripping rule, is not deductible in a given year, it can be carried forward to and deducted in the subsequent years. The balance of interest amounts carried forward is taken into account based on the first-in-first-out principle. The tax inspector will issue a decree confirming the balance of interest amounts.
In line with the coalition agreement of the Dutch government released in October 2017, the proposed Dutch earnings stripping rule is more restrictive than required under the Directive. Thus the Dutch regime (i) will not include a so-called group exemption (that would allow a deduction exceeding 30% of the adjusted taxable profit to the extent the group’s overall debt level exceeds 30%), (ii) includes a EUR 1 million threshold as opposed to the EUR 3 million threshold included in the Directive and (iii) will also apply in stand-alone situations (i.e. where the tax payer is not part of a group; this rule was not yet included in the coalition agreement).
Abolition of acquisition debt rules and excessive participation debt rules
In view of the introduction of the earnings stripping rule, it is proposed to abolish the acquisition debt rules (article 15ad Dutch Corporate Income Tax Act 1969, ‘CITA’) and excessive participation debt rules (article 13l CITA). The acquisition debt rules are aimed at denying the deduction of interest expenses in structures whereby a Dutch resident (i.e. typically an acquisition SPV) borrows funds to acquire the shares in a target and subsequently forms a corporate income tax fiscal unity with the target in order to offset the interest expenses payable in respect of such loan against the taxable profits of the target. The excessive participation debt rules of article 13L CITA may limit the deductibility of excessive interest expenses on debts if the taxpayer holds shares that qualify for the participation exemption regime (which requires a shareholding of at least 5%).
Under the proposed CFC-regime, the benefits derived from a controlled company, are included in the taxable profit of the corporate income tax payer, taking into account the interest held and the holding period. CFC benefits are defined as (A) (i) interest or other benefits from financial assets, (ii) royalties or other benefits from intellectual property, (iii) dividends and capital gains upon the alienation of shares, (iv) benefits from financial leasing, (v) benefits from insurance, banking and other financial activities, (vi) benefits from certain, low value adding, factoring activities (‘tainted benefits’), less (B) related expenses.
CFC-benefits are only taken into account to the extent the balance of benefits (i.e. income less expenses) results in a positive amount and that balance, by the end of the financial year, has not been distributed by the controlled company. Negative CFC-benefits can be carried forward six years to offset against future positive CFC-benefits.
A controlled company is defined as a company in which the tax payer, whether or not together with related companies or a related person (see below), has an interest of more than 50% (whereby interest is defined in relation to nominal share capital, statutory voting rights and profits of the company), provided that the company is a tax resident in a ‘low-tax jurisdiction’ or a state included on the EU list of non-cooperative jurisdictions (unless the company is taxed as a resident of another state). A jurisdiction is considered ‘low taxed’ if it does not levy a profit tax or levies a profit tax lower than 7% (the statutory rate should be at least 7%). Prior to each calendar year, an exhaustive list will be published with all designated non-cooperative and low tax jurisdictions for the next taxable period (being the next calendar year).
A permanent establishment can also qualify as a CFC.
For purposes of the CFC-regime purposes a company or a person is related to the tax payer if (i) the tax payer has a 25% interest in the company, (ii) the company or that person has a 25% interest in the tax payer (whereby interest is again defined in relation to nominal share capital, statutory voting rights and profits of the company).
A company is not considered a controlled company if (i) the income of the company usually for at least 70% consists of other than tainted benefits or (ii) the company is a regulated financial company as defined in article 2(5) of the Directive and the benefits earned by the company are usually for at least 70% derived from others than the tax payer, a related entity or a related person.
The CFC-regime does not apply if the controlled company carries out material (wezenlijk) economic activities. According to the explanatory memorandum, material economic activities are considered present if the relevant substance requirements that are currently already included in the anti-abuse provisions in the Dutch dividend withholding tax Act 1965 (‘DWT’) are met. See also our Tax Alerts of 23 May 2017 and 20 September 2017. Most importantly, it is required that the controlled company will need to incur annual wage costs of at least EUR 100,000 for employees and that the controlled company will need to have its own office space at its disposal in the jurisdiction where it is established during a period of at least 24 months whereby this office space needs to be properly equipped and used. Furthermore, the employees must have the proper qualification and their tasks should not be merely auxiliary.
If CFC-benefits are included in the taxable income of the corporate income tax payer, foreign profit taxes can be credited against Dutch corporate income tax payable, subject to certain requirements.
In the explanatory memorandum, several important clarifications are made. The legislator emphasizes that the CFC-regime in certain circumstances can lead to double (or more) taxation. However, the legislator considers it appropriate not to mitigate such double taxation as the regime should have a prohibitive effect. From a double tax treaty perspective, the legislator notes that – generally speaking – Dutch double tax treaties concluded before 1996 do not include a so-called switch-over provision (i.e. credit method instead of exemption method in case of passive income). Consequently under such ‘older’ double tax treaties, application of the CFC-regime to permanent establishments is prohibited by the double tax treaty. Furthermore it should be noted that the CFC-regime in principle not only applies to companies resident in no/low tax states or in non-cooperative states.
GAAR, exit provision, anti-hybrid provision
In line with earlier policy letters, the Dutch government takes the view that no general anti-abuse clause (GAAR) has to be introduced in the Dutch tax code as the existing judicial abuse of law doctrine (fraus legis) already embodies a GAAR.
Similarly, the Dutch government takes the view that existing exit provisions in the CITA already meet the requirements set by ATAD 1 (but does propose to make some amendments to the existing rules for deferral of payment of taxes).
The legislative proposal does not include anti-hybrid rules. These will be introduced upon the adoption of ATAD 2. See our Tax Alert of 1 March 2017.
Entry into force
The earnings stripping rule and the CFC-regime are proposed to enter into effect for book years starting on or after 1 January 2019.
2. Abolition as per 1 January 2020 of Dutch dividend withholding tax and introduction of conditional withholding tax on dividends, interest and royalty payments to low tax jurisdictions and in abusive situations
The legislative proposal regarding the abolition of DWT and introduction of a conditional withholding tax (‘WHT’) on dividends, interest and royalty payments as per 1 January 2020 (the WHT Legislative Proposal” ) is largely in line with the changes already announced in the coalition agreement. See our Tax Alert of 12 October 2017. However, the WHT Legislative Proposal does contain some new aspects which may be very relevant to existing structures.
Scope of the WHT Legislative Proposal
To further strengthen the Dutch fiscal climate, the Dutch government proposes to abolish the DWT. At the same time, in an effort to discourage tax avoidance and profit shifting, the government proposes a conditional WHT on dividend, interest and royalty payments by Dutch resident companies (e.g. NVs/BVs), cooperatives and certain mutual funds (‘Dutch Entities’) to so-called ‘low tax jurisdictions’ and in ‘abusive situations’. This conditional WHT will be introduced in two steps: first a conditional WHT on dividends will be introduced as per 2020 (simultaneously with the abolition of the DWT), next a conditional WHT on interest and royalty payments will be introduced as per 2021. The WHT Legislative Proposal currently only provides for a proposal for the abolition of the DWT and introduction of a conditional WHT on dividends. A legislative proposal in respect of the introduction of a conditional WHT on interest and royalty payments, will be submitted to Parliament in the course of 2019.
The WHT in principle only applies in respect of dividend payments to ‘related entities’. An entity is considered ‘related’ if the entity receiving the dividend has a ‘qualifying interest’ in the Dutch Entity distributing the dividend. A ‘qualifying interest’ is an interest that provides a, direct or indirect, controlling influence on the decision-making and activities of the related Dutch Entity (and in any case if the interest represents more than 50% of the statutory voting rights). In addition, the entity receiving the dividend and the Dutch Entity paying the dividend will also be considered related if a third party has a ‘qualifying interest’ in both entities. Furthermore, if the entity receiving the dividend is part of a cooperating group of companies holding a total combined qualifying interest in the Dutch Entity paying the dividend, they will be considered related as well.
Low tax jurisdictions
A jurisdiction is considered ‘low taxed’ (i) if it does not levy a profit tax or levies a profit tax lower than 7% (the statutory rate should be at least 7%) or (ii) if it is included in the EU list of non-cooperative jurisdictions for tax purposes (see also the discussion of the CFC regime above). Prior to each calendar year, an exhaustive list will be published with all designated low tax jurisdictions for the next taxable period (being the next calendar year). If a jurisdiction, with which the Netherlands has concluded a double tax treaty, would be designated as a low tax jurisdiction, the Netherlands will in principle not effectuate its WHT in the first three years after such designation. These three years are considered a reasonable period to renegotiate the relevant tax treaty (during which renegotiations the Netherlands will aim for an exclusive taxation in the state of residence / a reduced WHT rate only in respect of companies adding real value to the economy, by including a specific anti avoidance provision in the treaty).
Direct dividend payments to low tax jurisdictions
The conditional WHT on dividends is primarily aimed at direct payments (dividend distributions) by Dutch Entities to related entities in low tax jurisdictions. The same applies if the shares in the Dutch Entity, held by a related entity in a low tax jurisdiction, should be attributed to a permanent establishment in the Netherlands. In addition, WHT will in principle be due in the following situations (which are considered to resemble a direct interest of an entity in a low tax jurisdiction in a related Dutch Entity):
- If the shares in the Dutch Entity are legally held by an entity that itself is not resident in a low tax jurisdiction, but which shares should be attributed to a permanent establishment in a low tax jurisdiction; and
- If the shares in the Dutch Entity are held by a hybrid entity (which is considered tax transparent from a Dutch tax perspective), that has no tax residence or is resident in a low tax jurisdiction, for Dutch tax purposes in principle a direct dividend distribution will be recognized to the shareholder of such hybrid entity (which distribution should not be subject to Dutch WHT if such shareholder is resident in a non-low tax jurisdiction). However, if – based on the laws of the jurisdiction of the shareholder – such hybrid entity is not considered tax transparent, dividend payments will in principle neither be included in the taxable base of said shareholder. Therefore, Dutch WHT will in principle be due on dividend distributions by the Dutch Entity in the latter situation.
Abusive situations (intermediate holding structures)
Dutch WHT will not only be due in respect of direct payments to low tax jurisdictions (or situations resembling such direct payment – as discussed above), but also in respect of artificial structures in which the shares are held through an intermediate holding company resident in a non-low tax jurisdiction, aimed at avoidance of Dutch WHT. Application of WHT will be subject to a new anti-abuse provision that is based on the current Dutch CIT and DWT anti-abuse rules for foreign taxpayers that hold a qualifying shareholding/membership interest in a Dutch resident company/cooperative, with some additional features including a complementary test in EU/EEA situations (based on recent ECJ case law).
Under the anti-abuse provision provided for in the WHT Legislative Proposal, a situation is considered ‘abusive’ if there is an artificial structure or transaction (‘objective test’) and the interest in the Dutch Entity is held with the main purpose or one of the main purposes of avoiding Dutch WHT in the hands of another person (‘subjective test’).
Under the objective test, it needs to be determined whether there is an artificial structure or transaction that has not been put in place for valid commercial reasons reflecting economic reality. Valid commercial reasons (reflecting economic reality) are present if the intermediate holding company meets the so-called relevant substance requirements in the jurisdiction where it is located (see discussion under 1 above). If the intermediate holding company meets these requirements, both the structure and transaction are not considered to be artificial, as a result of which the anti-abuse rule does not apply.
For the application of the subjective test it will have to be assessed whether the direct shareholder of the Dutch Entity has been interposed with the main purpose or one of the main purposes to avoid Dutch WHT (on dividends) in the hands of another person.
In case of a corporate structure with multiple intermediate holding companies in a straight line above a Dutch Entity, – in short – the subjective test will have to be applied at the level of each shareholder (that holds an interest in an artificial intermediate holding company), if such shareholder itself is considered artificial under the objective test and is not resident in a low taxed jurisdiction.
If the requirements of the objective test are not met and based on the subjective test there is avoidance of Dutch WHT on dividends in the hands of another person, the anti-avoidance provision will in principle apply. However, if the intermediate holding company is resident within the EU/EEA, it is possible to alternatively demonstrate that valid commercial reasons reflecting economic reality are present (instead of meeting the relevant substance requirements). Based on recent ECJ case law, all aspects of the relevant case should be investigated for the assessment whether there is an artificial structure (and application of fixed general criteria does thus not suffice). ‘All aspects of the relevant case’ should include the organizational, economic and other relevant features of the group of which the shareholder is part, as well as the structure and strategy of the group. In this respect it seems that valid commercial reasons may inter alia be substantiated by the presence of economic activities at the level of the intermediate holding company that relate to the holding of the shares in the Dutch Entity (such as having an active involvement in the Dutch Entity by having a policy-setting and coordinating role).
Based on the explanatory memorandum, the government believes that the Netherlands should be able to effectuate the proposed anti-abuse provision under tax treaties that (will) include a principal purpose test or a similar anti-abuse provision.
In certain situations that are considered abusive for WHT purposes, dividend distributions to qualifying foreign shareholders could possibly also be subject to Dutch CIT (at the level of the foreign shareholder) under Dutch domestic CIT anti-abuse rules. In the explanatory memorandum it is noted that in certain cases, the WHT levied in respect of the dividends may not be creditable against the Dutch CIT liability in respect of such dividends.
In the explanatory memorandum to the WHT Legislative Proposal it is noted that in practice there will be a large diversity of cases, and whether Dutch WHT will be due will need to be assessed based on all relevant facts and circumstances of the specific case. However, the good news is that it will still be possible to obtain advance certainty from the Dutch tax authorities in this respect.
The tax base for the conditional WHT on dividends is largely the same as the current DWT base, although certain additional restrictions have been introduced. An important amendment is that the possibility for an exempt repayment of paid-in capital by Dutch Entities has been limited: under the WHT Legislative Proposal, a repayment of paid-in capital to a related shareholder in a low-taxed jurisdiction will in principle always be subject to WHT if the Dutch Entity still has profits (i.e. profits that exceed the paid-in capital). This is a clear deviation from the current special rule that (partial) repayments of paid-in capital are not subject to DWT if, for example, the nominal value of the shares concerned has been reduced by a corresponding amount by way of an amendment of the articles of association.
As an anti-abuse rule against structures aimed at avoidance of Dutch WHT on dividends, WHT will in principle also be due on capital gains realized on the disposal of shares in a related Dutch Entity (to the extent the capital gains realized relate to profits of the Dutch Entity). In addition, to avoid that in an abusive situation the shares in the intermediate holding company will be sold (instead of the shares in the Dutch Entity), also capital gains realized on the sale of the shares in such intermediate holding company will be subject to Dutch WHT (to the extent these capital gains relate to profits of the Dutch Entity).
Method of taxation
The taxation method of the WHT will be similar to the current method for DWT purposes. An important difference, however, is that the WHT (also for dividends) will be a period-based tax (calendar year), while the current DWT is a point in time-based tax (upon each distribution).
A Dutch Entity distributing dividends, will have to withhold all WHT due during the calendar year and will have to file a tax return (and pay all WHT due) within one month after the relevant calendar year. As WHT due in respect of the disposal of shares in a Dutch Entity can practically not be withheld by the Dutch Entity, the shareholder itself will have to file a tax return and pay the WHT due.
The rate of the WHT will be equal to the (highest bracket of the) Dutch CIT rate. The proposed rate will therefore be 23.9% for 2020 (in line with the proposed CIT rate for 2020), and 22.25% per 2021 (in line with the proposed CIT rate for 2021).
Under the WHT Legislative Proposal the Dutch tax inspector has discretionary power to decide whether to impose an additional tax assessment to the Dutch Entity or the foreign shareholder.
Further, a specific information reporting obligation has been proposed in respect of the WHT. Based thereon both the Dutch Entity and the taxpayer are obliged to supply the Dutch tax inspector – on their own initiative – with correct and complete information that could be relevant for the levy of the WHT. Such information should be supplied within two weeks after the time of becoming aware of the fact that information previously supplied is incorrect or incomplete. Failure (by willful misconduct or gross negligence) to comply with this information reporting obligation is considered an offence, which can result in a tax negligence penalty.
Finally, an new liability clause is included in the WHT Legislative Proposal. Based thereon, in certain cases the board of directors of both the Dutch Entity and the taxpayer may be held liable for any WHT payable.
3. Other proposed corporate income tax amendments
Reduction of corporate income tax rate
As announced in the coalition agreement, the corporate income tax rates are proposed to be reduced from 20% (first EUR 200,000 taxable profit) and 25% to 16% and 22.25% respectively in 2021. The reduction will take place over a three year period. For 2019 it is proposed to reduce the corporate income tax rates to 19% and 24.3% respectively.
Deduction of payments on Tier-1 capital abolished
As already announced in June of this year (see our Tax Alert of 3 July 2018), the Dutch government proposes to abolish the deductibility of (coupon) payments on additional tier-1 capital for CIT purposes. According to the proposal, the new rule would be applicable to book years that start on or after 1 January 2019.
Minimum capital requirement for banks and insurance companies
The Dutch government, in line with its coalition agreement, confirmed that it intends to introduce a minimum capital rule for banks and insurance companies that is intended to enter into force as per 1 January 2020. According to the coalition agreement, interest expenses should become non-deductible on debt that exceeds 92% of the statutory balance sheet total. See also our Tax Alert of 12 October 2017.
Regime for Fiscal Investment Companies amended
Furthermore, it is proposed to amend the fiscal investment regime for so-called FBI’s (Fiscale Beleggingsinstellingen). Two amendments are proposed in this respect. The first amendment is the abolition of the ‘remittance reduction’ (afdrachtvermindering), which is a result of the proposed abolition of the DWT as per 1 January 2020. Pursuant to the second amendment FBI’s are no longer allowed to directly invest in Dutch real estate as per 2020. This amendment is also a result of the abolition of the DWT. According to the legislative proposal, FBI’s are still allowed to (i) directly invest in foreign real estate or (ii) to indirectly invest in Dutch real estate. In the latter case, the FBI would hold shares in a real estate subsidiary which is regularly taxed in the Netherlands.
Loss carry forward period reduced from nine to six years
Under the current CITA rules, losses can be carry forwarded for nine years. It is proposed to limit this term to six years. Losses can still be carried verback for one year. According to the legislative proposal, the new rule will for the first time be applied to losses which are incurred in 2019. Losses that are incurred in years before 2019, can still be carried forward for nine years. The new rules also include a transitional rule to prevent that a ‘younger’ loss (for example realised in 2019) would evaporate in case the tax payer for example also has ‘older losses’ which for example date from 2017 or 2018.
Abolition of restricted loss utilisation in case of holding and finance activities
The rule that essentially states that losses that have been incurred as a consequence of holding and/or finance activities may only be offset against positive income of financial years in which the company conducts holding and/or finance activities, is proposed to be abolished.
Depreciation on self-used buildings limited
In relation to buildings that are self-used (as opposed to buildings held for investment), the proposal contains a new rule according to which tax payers are only allowed to depreciate these buildings to the extent the book value of the building is higher than 100% of the so-called WOZ-value of the building. After the implementation of this new rule, buildings that are self-used and held for investment will be treated equally.
4. Miscellaneous proposals
Application for 30% reimbursement expat regime reduced from 8 to 5 years
In short, under the 30% reimbursement expat regime, expats that meet certain requirements are allowed to apply for a tax free reimbursement of 30% of their salary (in addition thereto, under certain conditions, international school fees can be reimbursed tax-free). In line with the changes 7announced in the coalition agreement last year (See also our Tax Alert of 12 October 2017), it is proposed that the term of application of this regime is reduced from 8 to 5 years per employee. This reduced term will apply to existing situations, as well as new situations. In practice this means that employees that currently apply the 30% reimbursement expat regime whose ruling granted by the Dutch tax authorities will end in the period 1 January 2019 up to and including 1 January 2022 can no longer apply this regime as of 1 January 2019 (however, a transitional period may apply in respect of certain international school fees for the school year 2018/2019). For employees whose existing ruling ends, or new ruling will end, after 1 January 2022, this means that the maximum term to apply the 30% reimbursement expat regime is 5 years.
Low VAT rate increased to 9%
In line with the coalition agreement, it is proposed to increase the low VAT rate from 6% to 9%.
Personal income tax rate in box 2 gradually increased
In order to maintain a fair balance between the effective taxation of business income from incorporated and non-incorporated businesses, the personal income tax rate for income in relation to a ‘substantial interest’ (generally applicable to individuals holding 5% or more in a company (aanmerkelijk belang)) will be gradually increased to 26.9% in 2021.
Tax loss carry forwards in box 2 limited to 6 years
In line with the limitation for carrying forward tax losses for Dutch CIT purposes, it has been proposed to limit the carrying forward of tax losses in box 2 from 9 years to 6 years.
Compliments of Stibbe, a member of the EACCNY