Position paper of the Dutch tax authorities on the crediting of foreign withholding taxes withheld over rental payments for forklift tractors, trucks, containers and pallets
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On November 24, 2023 on the website of the Dutch tax authorities a position paper form the Knowledge Group international tax law, corporate income tax and profits of the Dutch tax authorities was published (KG:040:2023:8). In this position paper the Knowledge Group answers the question whether the Netherlands must grant a credit for foreign withholding taxes withheld over rental payments received for the renting out of forklift tractors, trucks, containers and pallets to customers located in Poland, the Czech Republic, Italy and Portugal.
Again the proposal for an unshell Directive is missing on the provisional agenda of the next ECOFIN Council
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The next meeting of the Economic and Financial Affairs (ECOFIN) Council is taking place on December 8, 2023. The Agenda highlights and a provisional agenda for this meeting have been published on the website of the European Council/the Council of the EU.
The Netherlands – Decree regarding the Earnings stripping measure published in the Dutch State Gazette
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On November 28, 2023 an interesting Decree of the Dutch Secretary of State for Finances of November 24, 2023 regarding the Earnings stripping measure (The Decree Earnings stripping measure) was published in the Dutch State Gazette. The Decree is a policy decision containing the policy for the earnings stripping measure as included in section 2.9a of the Dutch corporate income tax Act. The Decree will enter into force on November 29, 2023.
Besluit van de staatssecretaris van 24 november 2023 inzake de earningsstrippingmaatregel (Besluit Earningsstrippingmaatregel) gepubliceerd
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In de Staatscourant van 28 november 2023 is het Besluit van de Staatssecretaris van Financiën van 24 november 2023 inzake de earningsstrippingmaatregel (het Besluit Earningsstrippingmaatregel) gepubliceerd. Dit beleidsbesluit bevat het beleid voor de earningsstrippingmaatregel die is opgenomen in afdeling 2.9a van de Wet op de vennootschapsbelasting 1969.
The Dutch Supreme Court ruled on earn-outs and loss settlement possibilities in case of a pure holding/financing entity that was involved in a legal merger
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On November 17, 2023 on the website of the Dutch courts the judgment of the Dutch Supreme Court in case 21/05123, ECLI:NL:HR:2023:1579 was published. In the underlying case the Dutch Supreme Court ruled on several issues. One of them being the question whether a currency exchange gain that is realized over the purchase price that was due with respect to the purchase of a participation qualifies as a tax-exempt result of an earn-out payment. To be honest we don’t understand how the taxpayer thought he could be successful in his appeal with the position he took with respect on this matter.
The Dutch Supreme Court furthermore ruled on how the loss compensation rules work in case a pure holding and group financing entity with pre-merger losses (legally) merges with an operating entity.
The OECD released the Corporate Tax Statistics 2023 and the accompanying working paper “New evidence on global low-taxed profit”
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On November 21, 2023 the OECD has released the Corporate Tax Statistics 2023, as well a new accompanying working paper“New evidence on global low-taxed profit, OECD Taxation Working Papers, No. 67”. According to the OECD jurisdictions with statutory and average tax rates above 15% – account for more than half of all global profits currently taxed below 15%. It might be interesting to analyze the Corporate Tax Statistics 2023 and the analysis and the conclusions drawn in the accompanying working paper. Both documents are available in the English and the French language (the French versions were not made available yet at the time of writing this article).
Position of the Dutch tax authorities on the Dutch dividend withholding tax consequences of the repurchase of outstanding shares to hedge a potential conversion obligation that exists under a convertible bond
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On November 9, 2023 on the website of the Dutch tax authorities a position paper of their Knowledge Group dividend withholding tax and withholding taxes on the consequences for Dutch dividend withholding tax purposes of a repurchase of outstanding shares to hedge a potential conversion obligation that exists under a convertible bond was published (KG:024:2023:23).
Key decisions of the November 2023 infringements package published
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On November 16, 2023 the European Commission published the key decisions of the November 2023 infringements package. The key decisions published include a letter of formal notice being sent to Portugal for failing to comply with the EU excise duty rules on wine. Furthermore the European Commission decided to refer Belgium to the Court of Justice of the European Union for its failure to comply with the Treaty principle of free movement of workers, as regards taxation of non-resident taxpayers with modest income.
A position paper of the Dutch tax authorities on the carrying-back of losses for Dutch corporate income tax purposes has been published
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On November 14, 2023 on the website of the Dutch tax authorities a position paper of their Knowledge Group special profit provisions for corporate income tax purposes has been published regarding the carrying-back of losses for Dutch corporate income tax purposes (KG:011:2023:14). In this position paper the Knowledge Group answered the question whether the carry-back of a 2022 loss to 2021 is subject to the temporization measure of Article 20, Paragraph 2 of the Dutch corporate income tax Act (hereafter: DCIT Act) as that provision reads as of January 1, 2022. The Knowledge Group also answered the question what the consequences are if the carry-back of the 2022 loss takes place against the remaining 2021 profit takes place after previously already a loss from a financial year prior to 2021 was carried forward to 2021.
Kuwait joins the Inclusive Framework on BEPS and joins in the agreement to implement the Two-Pillar Solution
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On November 15, 2023 issued a press release announcing that Kuwait joined international efforts against tax avoidance by joining the OECD/G20 Inclusive Framework on BEPS.
The OECD released the 2022 Mutual Agreement Procedure Statistics
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On November 14, 2023 the OECD release the 2022 Mutual Agreement Procedure (MAP) Statistics. During the year 2022 the worldwide number of outstanding MAP-cases increased from 6.297 to 6.416. In 2022 2.493 cases have been started and 2.375 cases have been closed.
A position paper of the Dutch tax authorities regarding the withholding exemption for Dutch dividend withholding tax purposes and the ‘residing there’ criterion
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On November 9, 2023 on the website of the Dutch tax authorities a position paper of the Knowledge Group dividend withholding tax and withholding taxes of the tax authorities on the applicability of the withholding exemption for Dutch dividend withholding tax purposes and the residing there criterion (KG:024:2023:20) was published. In this position paper the Knowledge Group answers the question whether the tax treatment of the shareholders/particpants of the beneficiary to the proceeds is relevant when assessing whether under the tax legislation of a Treaty State the (primary) beneficiary to the proceeds is residing/established there (in the other Treaty State)?
De belastingdienst heeft een standpunt gepubliceerd over de toepassing van de inhoudingsvrijstelling voor bronbelastingen en het criterium aldaar gevestigd
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Op 9 november 2023 is op de wesbsite van de kennisgroepen van de belastingdienst een standpunt gepubliceerd van de Kennisgroep dividendbelasting en bronbelasting (KG:024:2023:20). De Kennisgroep dividendbelasting en bronbelasting heeft de vraag beantwoord of het voor de beoordeling of een opbrengstgerechtigde volgens de fiscale wetgeving van een verdragsstaat aldaar gevestigd is relevant is hoe de achterliggers van de opbrengstgerechtigde fiscaal worden behandeld.
The Dutch tax authorities published its position the definition of ultimate beneficial owner for dividend stripping purposes
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On November 7, 2023 on the website of the Dutch tax authorities a position paper of the knowledge group dividend withholding tax and withholding taxes of the tax authorities on the definition of ultimate beneficial owner with respect to the anti-dividend stripping regulations was published (KG:024:2023:18). This position paper is interesting to read because it relates to group restructurings.
48 jurisdictions issue a joint statement to work towards commencing automatic exchanges in crypto-assets reporting based on the internationally agreed Crypto-Asset Reporting Framework
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On November 10, 2023 the Inland Revenue Authority of Singapore issued a press release announcing that 48 jurisdictions issued a joint statement in which they expressed their joint intent to work towards commencing automatic exchanges in crypto-assets reporting based on the internationally agreed Crypto-Asset Reporting Framework (CARF) in 2027.
The Opinion of the Advocate General in Case C‑465/20 P - Commission v Ireland and Others (The Apple State Aid Case)
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On November 9, 2023 on the website of the Court of Justice of the European Union (CJEU) the opinion of Pitruzzella in Case C‑465/20 P, Commission versus Ireland Apple Sales International, Apple Operations International, formerly Apple Operations Europe, Grand Duchy of Luxembourg, Republic of Poland and EFTA Surveillance Authority, ECLI:EU:C:2023:840, was published.
Advocate General Pitruzzella proposes that the CJEU sets aside the judgment of the General Court in the Apple State Aid Case and refers the case back to the General Court for a new decision on the merits
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In a press release issued by the Court of Justice of the European Union (the CJEU)on November 9, 2023 with respect to the opinion to be delivered by Advocate General Pitruzzella in Case C-465/20 P, Commission v Ireland and Others, announced that Advocate General proposes that the Court sets aside the judgment of the General Court of the European Union and it refers the case back to the General Court for a new decision on the merits. A little success much needed by the European Commission. Unfortunately at the time of writing this article the text of the opinion itself was not yet published on the website of the CJEU.
The OECD seeks input on a draft toolkit to support developing countries in addressing base erosion and profit shifting risks when pricing minerals
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As part of the ongoing work of the OECD and the Intergovernmental Forum on Mining, Minerals, Metals and Sustainable Development (IGF) partnership on BEPS in the mining programme, the OECD has released an additional toolkit that is designed to support developing countries in addressing the transfer pricing challenges faced when pricing minerals for comments.
Opinion of the Advocate General in the Apple State Aid Case expected to be delivered on November 9
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The opinion of the Advocate General to the Court of Justice of the European Union (the CJEU) in Case C-465/20 P, Commission v Ireland and Others, is expected to be delivered on November 9, 2023.
