Highlights: - 2011 Budget presented The Dutch government presented the 2011 Budget. We have outlined some of the headlines of this Budget. - UK-Dutch tax treaty explained The Dutch Minister of Finance answered questions from parliament regarding the treatment of dual resident companies under the new UK-Dutch tax treaty - Innovation box – more opportunities to apply? Rumors are heard that the innovation box may be amended as a result of which this facility becomes more attractive for internationally operating companies. - Application of the participation exemption The Ministry of Finance published several clarifications on the application of the participation exemption. - Broadening of Tonnage tax regime More ships can benefit from the tonnage tax regime as a result of an expansion of the definition of ships. - Tax treaty negotiations In this section we summarize the status of tax treaty negotiations.

1. September 2010
International Dutch Tax News
Highlights: Corporate income tax
- The corporate income tax rate for profits
- 2011 Budget presented exceeding to € 200,000 will be reduced from
25.5% to 25%.
The Dutch government presented the 2011
- Measures are taken to combat the trade in
Budget. We have outlined some of the
companies to benefit from tax loss compensation
headlines of this Budget.
regulations.
- UK-Dutch tax treaty explained
The Dutch Minister of Finance answered Individual income tax
questions from parliament regarding the - The tax rate of the first bracket of personal income
treatment of dual resident companies under tax will be reduced to 1.85% on 1 January 2011.
the new UK-Dutch tax treaty - For individuals who have purchased a new house,
- Innovation box – more but have not managed to sell their old house, the
period during which they can deduct mortgage
opportunities to apply? interest for both houses will be extended from 2 to
Rumors are heard that the innovation box 3 years
may be amended as a result of which this
facility becomes more attractive for Indirect taxation
internationally operating companies. - The applicable rate of VAT on labour used in the
- Application of the participation renovation of dwellings older than 2 years will be
reduced from 19% to 6%. This temporary measure
exemption applies until 1 July 2011.
The Ministry of Finance published several - The tax law on the transfer of real estate will be
clarifications on the application of the amended to combat complex structures aimed at
participation exemption. avoiding this transfer tax. When a company is sold
- Broadening of Tonnage tax and at least 30% of the value of that company is
related to real estate situated in the Netherlands,
regime transfer tax is due. The same applies to the sale of
More ships can benefit from the tonnage tax a company where at least 30% of its value is
regime as a result of an expansion of the related to immovable property, wherever located.
definition of ships.
- Tax treaty negotiations Tax treaty between Netherlands and UK –
In this section we summarize the status of Dutch parliamentary explanations
tax treaty negotiations.
The Dutch Minister of Finance recently answered
parliamentary questions in the context of the
ratification of the tax treaty between the Netherlands
Budget 2011 presented and the United Kingdom of 26 September 2008 (the
2008 treaty).
The Dutch government presented the Budget for
2011. Below we have outlined some of the The Minister of Finance commented on (dual)
headlines. Considering the fact that the measures resident companies. He stated that instead of the
still have to be approved by parliament, we will go normal tie-breaker rule based on the place of
into the new measures in more detail in the effective management, the 2008 treaty uses the
December edition of this newsletter. alternative of Paragraph 24 of the commentary to
Article 4 of the OECD Model Convention and
provides that the place of establishment of a
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2. company will be determined by mutual agreement. It The innovation box deviates from the general
is indicated that this option is chosen to combat corporate income tax regulations, as income from
abuse as was seen under the current tax treaty. certain self-developed intangibles on which a patent
Such abuse would be the transfer of a company has been granted or for which a special R&D-
from the Netherlands to the UK solely to avoid declaration has been granted, are not taxed at
dividend withholding tax, or the transfer of a 25.5%, but at 5%. Losses in the innovation box
company from the UK to the Netherlands solely to however are deductible at the general rate (top rate:
avoid capital gains tax and the transfer of a loss- 25.5%). The taxpayer who has a R&D-declaration or
making company from the Netherlands to the UK in a patent, may opt for the use of the box regime. This
order to offset the capital losses in the UK. means that when the taxpayer starts to develop, he
incurs costs. These costs are deducted under the
According to the Minister of Finance, the mutual general rules and the innovation box is not
agreement procedure only applies to clear abuse applicable.
cases. Furthermore, the competent authorities have
agreed that they will try to resolve pending cases Subsequently, when the patent or intangible is
within 6 months. In addition, cases of dual finalized and – if all goes well – generates income,
residence, which were dealt with under the 1980 this income will be taxed. On this first income – up
treaty, will not be subject to revision as long as the to the amount of the development costs – the
facts and circumstances do not change. Thus, a general corporate income tax rate of 25.5% applies.
mutual agreement only has to be requested if a On the excess, the 5% rate may be applied when
newly established company is dual resident under opted to do so. The innovation box may be applied
the 2008 treaty, or an existing company becomes a for individual assets. Once an election for the
dual resident pursuant to a change of facts and regime has been made, opting out is not possible
circumstances with respect to an existing situation. except for a sale of the intangible asset(s) involved.
Issues to be considered for the determination of the The innovation box regime can not be applied to
place of residence are e.g. the place of the board acquired assets but it is possible to apply the
meetings, the place where the company’s regulation in respect of further development
headquarters are located, the place where the activities relating to such acquired assets. Profits
senior management of the company is performed, should be derived and must therefore be properly
the extent and nature of the economic relationships allocated to qualifying assets. There is no
of the company to each of both States and whether prescribed remuneration format. Apart from royalty
there is a risk of improper use of the 2008 tax treaty proceeds, profits obtained from sale or service
or domestic law in either of the states. It is not operations will qualify too.
possible to use any judicial recourse against the
outcome of a mutual agreement procedure. In cases The most important criterion to obtain the
where the place of residence cannot be determined declaration on R&D is that something technically
by mutual agreement, the tax authorities will ensure new should be developed. Such a declaration
that double taxation is avoided. therefore would not only reduce the costs of
development, but also arranges that the income
Furthermore it was made public that closely related (after recapture of the costs incurred) is taxed at
dual-listed companies must distribute the same 5%. Note that this so-called R&D-declaration is
amount of dividends. To meet this requirement, the crucial as it is a requirement to be able to opt for the
companies may set up an equalization agreement, innovation box if the intangible is no patent. Note
which provides for the transfer of assets between that the innovation box cannot be used for
the companies if the profitability of both companies trademarks, logo’s and similar assets. However, as
substantially differs. regards the R&D-declaration it may be pointed out
that such a declaration can also be obtained for the
Innovation box: more opportunities to development of software.
apply? As to the scope of qualifying assets, already
previously a number of points were clarified. A wage
tax credit facility exists for which also non-
Rumors are heard that the innovation box may be
patentable R&D qualify, if a "R&D declaration" has
amended in a way that this facility becomes more
been obtained (a declaration for ´Speur-&
attractive to large – internationally operating –
Ontwikkelingswerk´). Such a R&D declaration may
enterprises. At present, the amendments are not yet
be used to qualify resulting intangible assets for the
known. Generally, from a Dutch perspective the
innovation box. It has been confirmed that software
innovation box is considered more as a facility
assets and business secrets fall within the scope of
mainly used by Dutch small or mid-size enterprises.
the innovation box regime. Note that the regime is
confined to assets of a technical nature, which
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3. means that trademarks and other marketing which entitles that company to at least 5% of the
intangibles do not qualify. Not only R&D is covered shares in a subsidiary. With respect to devalued
by the innovation box: it may also be related to participations, which prior to 1 January 2010 did not
improvements of manufacturing process know-how. qualify for the participation exemption, the
Outsourcing of operations concerning innovation participation exemption only applies for benefits
projects are allowed within or outside of the received in excess of the amount of the devaluation.
Netherlands and within or outside the group of
companies of which the taxpayer is a member. Furthermore, the Decree provides guidelines for the
application of the subject-to-tax test in the case of
A functional analysis should focus on qualification several specific situations. In the first place, as
requirements. The Minister of Finance has promised regards the UK group relief facility, the test is
to introduce guidelines for the computation of profits considered to be met in the case of consolidation
derived from intangible assets for which the systems, such as the UK group relief, which differ
innovation box regime election was enacted. substantially from the Dutch consolidation regime or
However, a clear statement has been made that a in case of other deviating possibilities concerning a
residual profit method, on the strength of which the profit and loss transfer.
residual profit after first allocating appropriate
returns to other assets and/or operations will be As regards UK dormant companies, under UK law,
imputed to qualifying assets, must be applied. no interest is calculated on debt relations between
two dormant companies, which are not actively
If in the near future developments in this respect trading. The consequences are that the debtor
occur, we’ll inform you further. cannot deduct interest, whereas the creditor does
not receive taxable interest. The test is deemed to
The application of the Dutch participation be met with respect to such dormant companies.
exemption
If a foreign subsidiary has a permanent
establishment in a third state the question is
On July 12, last, the Dutch tax administration issued
whether the subject to tax test depends on the
its opinion on the application of the participation
aggregate tax imposed on both the subsidiary and
exemption, under the new 2010 rules. The Decree
its PE. The test is not met if the aggregate tax rate
in which this opinion was published, has retroactive
is below 10%, e.g. due to a unilateral or bilateral
effect from 1 January 2010. In the Decree several
measure(s) to avoid or reduce double taxation. Also
issues are clarified.
a credit for withholding tax by the state of residence
is discussed. If a foreign subsidiary receives income
First of all, Advance Tax Rulings (ATRs) issued
from a third state, and that entity is entitled to credit
under the participation exemption regime applicable
the withholding tax withheld on that income, the test
before 1 January 2010 remain valid until their term
is met if the profit tax before credit of the withholding
of validity has expired. However, companies may
tax is at least 10%. However, the test is not met if a
request a new ATR based on the requirements for
tax sparing credit is granted in the state of residence
the participation exemption which apply from 1
of the subsidiary, which the Netherlands would not
January 2010.
have granted.
In order to benefit from the participation exemption,
As regards classification differences the Decree
a Dutch resident company should own at least 5%
states that if the Netherlands classifies a foreign
of the shares in a company that has capital which is
entity as non-transparent, whereas the state of
wholly or partially divided into shares. The Decree
residence of the entity classifies it as transparent,
approves that a participation of at least 5% in a
the test is met if the underlying participants are
taxable association will be treated as the holding of
subject to profit tax at a rate of at least 10%. If
shares in a company with a capital which is wholly
classification differences exists because the
or partially divided into shares.
Netherlands classifies a subsidiary as transparent,
A participation of at least 5% in a mutual guarantee
whereas the state of residence classifies it as non-
fund will for the members/insured persons be
transparent issues may arise. The test is in these
treated as a membership right in a cooperation and
cases not met if, as a result of tax consolidation of
shall be considered as the holding of shares in a
the foreign subsidiary and the interposed company
company with a capital which is wholly or partially
under the domestic rules of the state of residence,
divided into shares. Accordingly, the participation
the effective tax rate is below 10%. However, if the
exemption applies provided the other conditions are
pre-consolidation tax rate of the foreign subsidiary is
met.
at least 10%, a request can be sent to the Ministry
of Finance that the test is nevertheless met. Such
Also, the participation exemption applies if a related
requests must be filed by means of the competent
company of the parent company holds a call option
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4. tax inspector or the APA/ATR team of the tax continuation of negotiations about a tax treaty or an
administration at Rotterdam Rijnmond. amendment protocol.
Tonnage tax regime: broadening of its
applicability
For information please contact:
On 16 July 2010, it was published that for the Marco Visser or Frans Tempel
purposes of the tonnage tax regime, the definition of T: +31 33 495 25 00 T: +31 33 463 57 27
“ship” is expanded to cable- and pipe-laying ships, E: visser@crop.nl E: ftempel@crop.nl
“research ships” and crane ships. This in order to
stimulate the use of the Dutch tonnage tax regime.
Disclaimer: CROP registeraccountants and CROP belastingadviseurs
makes no representation nor gives any warranty (either express or
Dutch tax treaty negotiations implied) as to the completeness or accuracy of this publication. CROP
registeraccountants and CROP belastingadviseurs is not liable for the
st information in this publication or consequences of the use of this
In its news release of July 1 , the Dutch Ministry of publication. CROP registeraccountants and CROP belastingadviseurs will
not be liable for any direct or consequential damages arising from the use
Finance indicated that the Netherlands will start of the information contained in this publication.
negotiations with Australia, Belgium, Costa Rica,
Germany, Indonesia, Kenya, New Zealand and
nd
Panama in the 2 half of 2010. Further, it was
indicated that the Netherlands will also renew its
contacts with Angola, Brazil, Chile, China,
Colombia, India, Poland and Singapore. These
intentions might lead to the beginning or the
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