Decree on international tax rulings revised

On 18 June 2022, the Dutch government updated the decree on international tax rulings, which sets out the conditions for a consultation request with the tax authorities on corporate income tax, withholding tax or Dutch tax treaty issues. The decree was significantly revised in 2019 to take into account changing international and European norms; as a result, the Dutch ruling practice has evolved to become more transparent, while continuing to maintain a robust practice for taxpayers engaging in genuine activities.

The Dutch tax administration receives hundreds of ruling requests annually, most of which relate to the innovation box regime, transfer pricing (advance pricing agreements) or the application of Dutch tax law in general (advance tax rulings). These rulings are concluded with taxpayers to provide certainty about the taxpayer company’s tax position.

The Dutch tax authorities exchange information about international tax rulings with foreign tax authorities and publish anonymised summaries of rulings, two practices that have further improved the business climate and enhanced transparency. 

This article summarises the changes to the decree.

Overview of the changes

The decree is updated to include the following:

• Preliminary consultations on reverse hybrid entities and transfer pricing mismatches; 
• Applicants subject to EU financial sanctions are not eligible for a ruling;
• Applicants must provide more information on the global shareholder structure and organization; and
• Requests for a bilateral or multilateral advance pricing agreement (APA), as well as requests on catch-all provisions and corporate tiebreaker provisions in tax treaties, should be directed to the mutual agreement procedure (MAP) team of the Dutch tax administration.

Reverse hybrid entities and transfer pricing mismatches  

New corporate tax measures on hybrid mismatches that implement the relevant rules in the EU Anti-Tax Avoidance Directive 2 (i.e., ATAD2) became effective in the Netherlands on 1 January 2022. These rules extend the hybrid mismatch rules to partnerships by introducing corporate income tax liability for Dutch partnerships and entities established under foreign law that qualify as reverse hybrid entities so that these entities are no longer able to generate tax-free profits from a Dutch tax perspective (for prior coverage, see the article in the November 2021 issue of Corporate Tax News). A Dutch reverse hybrid entity—a Dutch-incorporated or Netherlands-based partnership—is an entity that is considered transparent for Dutch tax purposes but treated as fiscally non-transparent under the legislation of another jurisdiction; under the rules that apply as from January, a reverse hybrid is considered a Dutch tax resident and is subject to tax in the Netherlands. If a partnership or entity becomes liable for corporate income tax in the Netherlands, it must calculate its profit independently and file a corporate income tax return, and dividend, interest and royalty payments could be subject to withholding tax.

According to the decree, the International Tax Certainty Board now handles rulings related to reverse hybrids. Further, the board addresses taxpayer requests relating to rules aimed at neutralizing transfer pricing mismatches to prevent double nontaxation. These measures were introduced in 2022 to address transfer pricing mismatches between associated entities and related parties where certain costs are incurred in the Netherlands without the corresponding income being taxed in another jurisdiction. Transfers of assets can also fall within the scope of the rules if there is a mismatch in the (tax) value taken into account at the level of the transferor and the transferee.

Applicants subject to EU financial sanctions

The 2019 changes to the international ruling process introduced stricter eligibility requirements to request a ruling. According to the June 2022 updates to the decree, applicants subject to EU financial sanctions are now prohibited from obtaining a ruling. The European Commission publishes consolidated lists of financial sanctions and is responsible for keeping them up to date.

Ineligibility for a ruling extends to ultimate beneficial owners (or underlying intermediary holding companies) that have at least a 5% shareholding. As a result, when requesting a ruling, a taxpayer must submit a statement that it, its directors and ultimate beneficial owners (as well as any intermediary holding companies) with an (in)direct shareholding in the applicant of at least 5%, do not appear on the EU sanctions list.

Information on the global shareholder structure and organisation

Basic information about the global shareholder structure, organization and history of the group must be submitted when applying for a ruling, including:

• The industry classification of the group (as a whole) according to NACE Rev. 2, which is the industry standard classification system used in the EU;
• Information about the ultimate beneficial owners of the applicant’s assets (and any intermediary holding companies) that directly or indirectly hold at least 5% of the applicant;
• A statement that the information on ultimate beneficial owners corresponds to registration in the Dutch trade register, if so required.

Applicants should be aware of the need to provide additional information to verify that they are not subject to any EU financial sanctions.

Team responsible for certain ruling requests

If an applicant’s certainty depends on tax treatment in more than two countries, a multilateral APA may be requested. Due to a change in the international tax ruling decree, these will now be handled by the MAP team. Similarly, requests about catch-all provisions and corporate tiebreaker provisions in tax treaties should be directed to the MAP team of the Dutch tax administration.

Comments

Advance tax rulings have long been a cornerstone of the Dutch business and tax environment. Businesses that have concluded or are considering an international ruling with the Dutch tax authorities should take the following changes to the decree into account:

• The International Tax Certainty Board now handles preliminary consultations about reverse hybrids and arm’s length mismatches.
• Applicants must provide a statement in the ruling request confirming that it is not included on the EU sanctions list.
• Ruling requests must contain information on the global shareholder structure and organization of the group.
• Requests for a bilateral or multilateral APA and requests relating to catch-all provisions and corporate tiebreaker provisions in tax treaties are handled by the MAP team.

Hans Noordermeer
hans.noordermeer@bdo.nl 

Rutger Heinsius
rutger.heinsius@bdo.nl