Background and history

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 practise, 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 profit the tax payer should generate for its activities in the Netherlands. 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, 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 (abolished in 2001; see below), mainly passive finance and royalty companies were located in The Netherlands (so called flow through companies) with little substance, and in many cases no or very low business risks. 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This old ruling policy has been replaced by new policy in 2001. Existing structures are allowed a grand farther period up to 2005.

In 2001 the Dutch ruling practice is restructured into an Advance Pricing Agreement ("APA") and Advance Tax Ruling ("ATR") practice.

The new ruling practice contains new elements, but most of it is in fact a codification of already existing but not yet legalized practice. The policy also prescribes the procedure for obtaining rulings.

The main changes relate to so-called "Financial Services Companies", which include finance companies and royalty companies. Under the current ruling policy structures that do not have real substance in The Netherlands (substance requirements), such a pure flow through royalty structures, are in essence no longer eligible for a ruling, unless they agree in advance with certain exchange of information procedures with other countries. Rulings can however still be obtained for royalty and finance companies provided that the Dutch company meets substance requirements of both an operational and economical nature.

The substance requirements do not apply to holding companies, so that it is still possible to set up a Dutch holding company with low substance in the Netherlands. 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.

An APA provides certainty in advance regarding transfer-pricing issues.

Typical issues to be governed in APA agreements are the prices with are charged within a group of 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, in principle, cover all 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 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, your Dutch subsidiary should receive an 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 arm’s length principle, which in general means that the conditions of transactions between group companies are comparable with conditions of transactions conducted by unrelated companies. As stipulated before, each and every company involved should receive a remuneration that is a reflection of the functions performed, taking into account the assets used and the risks assumed.

The arm’s length principle as incorporated in Dutch tax law and concrete guideline are given in 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 not only include information on the transactions, products, business or arrangements that need to be covered but also which parties will be involved, information about the world wide organisational structures and last but not least a description of the proposed transfer pricing methodology.

In principle you are free to choose the most suitable transfer pricing method provided that the method chosen leads to an arm’s length remuneration for the specific transactions or activities for which certainty in advance has been requested and you will be able to support the method chosen. 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 policy.  

The ruling policy furthermore provides concrete guidelines for qualifying Financial Services Companies, which include financing companies and royalties 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 both from 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 will have to be taken in The Netherlands. Furthermore, all kind of administrative activities 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 have 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.

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.

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 (like 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
• 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 policy.

The validity of both an APA and an ATR is laid down in the agreement. In principle you are free to indicate the term for which it is reasonable to provide certainty in advance but you should be able to support that. In general, a period of four years or five years can be considered. After expiration of this period, you may request for an extension, which is normally granted under the same terms and conditions.

Though an APA generally applies to future transactions or activities, in certain cases it may be possible to get clearance on (comparable) transactions in earlier years.

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. In case of multilateral or bilateral APA rulings, such an agreement will also be included between the countries involved.

Periodical audits can be expected examining whether the transfer prices used are in accordance with what has been agreed upon in the agreement.

What to do if your current structure was set up when the old ruling policy was still applicable and your Dutch Financial Services Company qualifies as a passive flow through company or you obtained a participation exemption ruling?

For existing structures, which were in force on 1 April 2001, a grandfather period was introduced. This means that the old ruling policy will still be applicable until 31 December 2005, even in case you obtained a ruling that expires earlier. It is therefore recommended to check the status of your current structure in time and take appropriate action.

What can we do for you?

We have extensive expertise in the establishment and maintenance of ruling companies.  If you require more ifnormation please feel free to contact us via e-mail or to call us at our office at +31 (10) 2010466.

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