International tax planning - Disclosure of the shareholder of a Dutch company

Last updated: 18-01-2006

From a legal perspective there is a requirement for disclosure and publication of the shareholder of a Dutch BV if it concerns a 100% shareholder. Only 100% shareholders must be registered in the Trade Register of the Dutch Chamber of Commerce. The Trade Register is accessible by the public.

This does however not mean that minority shareholders are not traceable in the public records.

The Trade Register for instance provides the possibility to obtain the identity of the incorporators of a Dutch company, even if they are minority shareholders. This may be one of the reasons to buy a shelf company instead of incorporating a new BV when a structure is set up.

For shares owned in listed companies special rules apply. In summary, if it concerns a stake of more than 5% in a listed company there is a legal disclosure (and publication) requirement.

For tax purposes the identity of the direct shareholders of the Dutch company must be disclosed in the annual Dutch corporate income tax return or in any other tax procedure which relates to the shareholder of the Dutch company. The information disclosed to the Dutch tax authorities is however protected in the sense that they have a legal confidentiality obligation i.e. they are not permitted to provide this information to third parties. Exceptions to this rule are possible for instance if the information relates to criminal activity or if there is a legally founded request for exchange of information by another state. There is a very stringent procedure for exchange of information with other states, which in practice makes the actual exchange of information with third states a very rare phenomenon.

There are no legal disclosure or publication requirements for beneficial owners which are not direct shareholders of the Dutch company. However, there is an indirect disclosure requirement based on the Dutch anti-money laundering and anti-terrorism laws. Where it comes down to, is that Dutch service providers are legally obliged to establish and keep record of the identity of their clients and the source of funds. Special rules apply to banks and trust companies, which are subject to supervision by the Dutch Central Bank.

If a foreign owned Dutch company wants to do business with a Dutch bank or trust company it is obliged to disclose the identity of the ultimate beneficial owners to the bank or the trust company. Most of the banks or trust companies do however have procedures in place to warrant that the information disclosed can only be used in the context of the anti-money laundering and anti-terrorism laws, and for instance not for taxation purposes.

The Dutch tax authorities can always ask the Dutch company for disclosure of the ultimate beneficial owner(s). It is however the general opinion that there is no obligation for the Dutch company to provide this information, unless the Dutch tax inspector can prove the relevance for Dutch taxation.

If the Dutch company applies for an advance tax ruling it is a formal requirement that the identity of the ultimate beneficial owner(s) is disclosed in the ruling request.

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