The Dutch tax ruling practise
You intend to start up operations in the Netherlands and now you want to get advance certainty about your Dutch tax position?
You may already know that the Netherlands traditionally has an extensive, efficient and reliable advance-ruling practice, which provides for various rulings for different types of activities/structures. Nowadays the main subject of tax rulings is application of transfer pricing principles.
An advance tax ruling is an agreement between the Dutch tax authorities and the taxpayer about the application of Dutch tax law regarding (future) transactions, investments or corporate structures, i.e. it determines the interpretation of Dutch tax law for the specific case of the taxpayer. For the taxpayer for who taxation may be a significant factor to decide on a possible location, the advantage is that it is possible to obtain clarity and certainty in advance regarding the tax treatment, thus before the actual activities are started up or the structure is established.
In the past the Dutch Ministry of Finance developed a set of standard rulings for certain frequently occurring situations, like for example the determination of an arm’s length remuneration for finance and royalty activities, activities of an auxiliary and supportive nature and the application of the Dutch participation exemption for Dutch (intermediate) holding companies.
Under this old ruling policy, mainly passive finance and royalty companies with little substance, and in many cases no or very low business risks were located in the Netherlands (so-called flow through companies). Under this old ruling policy the arm’s length remuneration was determined as a fixed margin: for instance for financing as a percentage (spread) of the average funds on lent per annum and for royalties a percentage of net royalties received.
This old ruling policy has been replaced by a policy in 2001.
In 2001 the Dutch ruling practice was restructured into an Advance Pricing Agreement ("APA") and Advance Tax Ruling ("ATR") practice.
The 2001ruling practice was in fact a codification of already existing but not yet legalised practice. The policy also prescribed the procedure for obtaining rulings.
The main changes relate to so-called "Financial Services Companies", which include finance companies and royalty companies. Under this ruling policy, structures that do not have real substance in the Netherlands (i.e. do not meet the substance requirements), were no longer eligible for a ruling, unless the company agrees in advance with certain exchange of information procedures with other countries. Rulings can however still be obtained for royalty and finance companies that meet the Dutch substance requirements.
The ruling practice was again renewed in July 2019 when stricter policies for the ruling request process were introduced and more importance was given to the substance requirements. See also International tax planning - The Dutch holding company.
Depending on the intended activities and/or intended structure you can either obtain an Advance Pricing Agreement or an Advance Tax Ruling.
Advance pricing agreement (APA)
An APA provides certainty in advance regarding transfer pricing issues.
Typical issues to be governed in APA agreements are the prices that are charged to related companies for services rendered or goods delivered. These kinds of rulings are issued within the scope of Dutch transfer pricing principles.
An APA request can, cover difference aspects of transfer pricing issues of a taxpayer or may be limited to specific associated enterprises or to specific transactions. This may be an important feature when deciding to conduct actually business in the Netherlands.
For example, the goods you intend to sell on the Dutch market are manufactured in your home country and you wonder what remuneration your Dutch subsidiary should receive for its sales and marketing activities. In an APA certainty can obtained on the amount of the remuneration.
In line with sound business practice, a company operating in the Netherlands is considered to aim for added value and as such should report a proper remuneration in relation to the activities it performs. Even when the activities performed are of an auxiliary or supportive nature, the Dutch company is required to report a minimum margin. In essence, the Dutch subsidiary should receive an at arm’s length remuneration for the services and/or activities it performs.
You can basically only obtain an APA if you are able to demonstrate that the transfer prices you use or intend to use are consistent with the at arm’s length principle, which in general means that the conditions of transactions between group companies have to be comparable to conditions of transactions conducted between unrelated companies. As stipulated before, all company involved should receive a remuneration that is a reflection of the functions performed, while taking into account the assets used and the risks assumed.
The at arm’s length principle as incorporated in Dutch tax law and concrete guidelines have been drawn up and are part of the ruling policy. For more information about the Dutch transfer pricing principles we refer to the publication of the Dutch Ministry of finance: Transfer prices, the application of the arm’s length principle and the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (OECD Guidelines), Decree of 30 March 2001. When filing the APA request it should include information on the transactions, products, business or arrangements that need to be covered as well as the parties that will be involved, information about the organisational structure and a description of the proposed transfer pricing methodology.
In principle you are free to choose the most suitable transfer pricing method provided that the chosen method can be substantiated and leads to an at arm’s length remuneration for the specific transactions or activities for which certainty in advance has been requested. Other information to be provided concerns amongst others a critical assumption upon which the methodology or price is based, a general description of the market conditions and the accounting periods to be covered.
The procedure for requesting an APA is described in the ruling policy.
The ruling policy furthermore provides concrete guidelines for qualifying Financial Services Companies, which include financing companies and royalty companies.
In order to qualify for an APA, a qualifying Financial Services Company (rendering financial services to related parties) must comply with the substance requirements that have both an operational and an economical nature.
As the operational substance requirements are concerned, the Dutch company should have professionally skilled Dutch resident directors (either individuals or companies) which form at least half of the board and who have certain real decision power. Major decisions have to be taken in the Netherlands. Furthermore, all kind of administrative activities such as keeping a bank account should be performed out of the Netherlands.
As regards the economical substance, the company should run real business risks in relation to its activities and should have sufficient equity at stake. The risks to be run for finance companies are well defined and include credit risks (bad debt risks and currency risks), market risks, etc. As a safe haven a minimum requirement for the equity at risk is introduced; the equity should be at least 1% of the amount of outstanding receivables with a maximum of € 2,000,000. In addition, the financial service company should make an adequate return on equity (ROE).
For royalty companies there are no specific guidelines yet, but it is understood that a similar approach should be followed as the one that applies to the finance company. Informally however, representatives from the Dutch tax office stated that a royalty conduit company is considered to incur real risks on its activities in case its equity is the lower of 50% of the expected gross royalty payments and EUR 2,000,000. Moreover, a minimum of 50% of the minimum equity should be paid as an advance to the licensor to substantiate that the royalty conduit company is running risks. The Dutch royalty company should make an adequate return on equity (ROE) as well.
Many countries have imposed anti-treaty shopping legislation to counter the use of passive finance and royalty companies. In general terms the Dutch company should meet certain substance requirements before it can claim treaty benefits (such as a reduction of withholding taxes in the source state). The Dutch substance requirements imposed on Financial Services Companies can from a perspective of tax treaty protection be considered as a save harbour i.e. when the Dutch company meets the Dutch substance requirements it should in most cases qualify for treaty benefits in other countries as well.
An ATR provides certainty in advance regarding the tax consequences of certain international structures and/ or transaction. An ATR can be requested for:
- The application of the participation exemption for intermediate holding companies or top holding companies
- The application of the dividend withholding tax exemption.
- International structures in which hybrid financing forms or hybrid legal forms are involved
- The (non-) existence of a permanent establishment in the Netherlands.
The procedure for requesting an ATR is described in the ruling policy.
The validity of both an APA and an ATR is laid down in the agreement. In principle the term limited to 5 years. After expiration of this period, you may request for an extension, which is normally granted under the same terms and conditions provided that the facts and circumstances have stayed the same.
Possible retroactive application
Though an APA generally applies to future transactions or activities, in certain cases it may be possible to get clearance on (comparable) transactions that have already taken place.
The APA or the ATR request should be filed with the competent tax inspector who will present the request to the APA/ATR team of the tax authorities in Rotterdam for binding advice. The Dutch tax authorities will evaluate the request and consider all facts and circumstances linked with the transactions or activities for which certainty in advance is requested.
The authorities aim to process a request within eight weeks but this period may be extended if additional information is needed for evaluation.
When the Dutch tax authorities accept the APA or ATR request, a binding agreement ("vaststellingsovereenkomst") is to be concluded between the taxpayer and the Dutch tax authorities. The agreement will be signed by two tax inspectors in order for it to be valid. In case of multilateral or bilateral APA rulings, such an agreement will also be included with the countries involved. When an agremeent is concluded an anonymized summary of the ATR or APA will be published.
Periodical audits can be expected examining whether the transfer prices used are in accordance with what has been agreed upon in the agreement.
| Advice on an appropriate tax structure |
| Advice on transfer pricing issues |
| Feasibility study of tax ruling |
| Preparation and filing ruling request |
| Negotiations with the tax inspector |
If you are interested in our services, please feel free to contact us via e-mail or to call us at our offices in Rotterdam +31 (10) 2010466 or Amsterdam +31 (20) 5709440.
We make time for you!