In the Dutch Staatscourant of June 28, 2019 a Decree of the Dutch State Secretary of Finance of June 19, 2019 was published. The Decree gives substance to the policy intentions on the renewed ruling practice which the State Secretary announced in his letter of November 22, 2018. The Decree applies from July 1, 2019. In this article we will discuss a few elements of the Decree.
According to the Decree, pre-consultation on international aspects of the application of the Dutch corporate income tax Act or the Dutch Dividend Tax Act and pre-consultation on the application of a bilateral treaty or arrangements to prevent double taxation on income and capital, insofar as related to the aforementioned mentioned laws, has to take place in a centralized and uniform manner. In order to guarantee the unity of policy and implementation, and to guarantee the quality, the underlying Decree introduces an International Tax Certainty Board (College Internationale Fiscale Zekerheid van de Belastingdienst). All agreements made in preliminary consultations within the context of the Decree are to be submitted to this Board for approval. In addition, the underlying Decree regulates which issues are to be discussed in advance by the Treatment Team International Tax Certainty (Behandelteam Internationale Fiscale Zekerheid). It furthermore regulates when a request for preliminary consultation is to be addressed to the foreign investors contact point. The Decree also works out in which cases there is no access to preliminary consultations.
The International Tax Certainty Board is a ‘body’ within the Dutch tax authorities. This Board is responsible for the central coordination of the preliminary consultations to obtain advance certainty in the form of rulings with international aspects in order to:
- guarantee the unity of policy and implementation;
- monitor the quality of the relevant settlement agreements (correct application of laws and regulations, case law and policy); and
- ensure proper compliance with procedural rules.
Before a ruling with international aspects is issued, this ruling is to be submitted by the first examiner to the International Tax Certainty Board for approval.
An interested party can request prior consultation to obtain certainty in advance. The general policy regarding such preliminary consultations is laid down in the BFB (Besluit Fiscaal Bestuursrecht). The Decree of June 19, 2019 is a supplement to the BFB and applies to preliminary consultations meant to obtain advance certainty in the form of an international tax ruling. The application of the Decree is limited to rulings with international aspects that relate to the application of the Dutch corporate income tax Act or the Dutch dividend tax Act and the application of bilateral treaties and arrangements to prevent double taxation on income and capital, as far as these taxes are concerned.
In paragraph 2 of the Decree the State Secretary sets out the procedures that are to be followed with respect to advance tax rulings with international tax aspects.
Situations in which it is not possible to conclude a ruling
In paragraph 3 of the Decree the State Secretary describes situations in which it will not be possible to obtain a tax ruling. In this respect the Decree states the following:
“In order to combat the facilitation of international tax avoidance the following applies to certainty in advance that is provided in the form of a tax ruling with international aspects:
a. Pre-consultation to obtain certainty in advance in the form of an international tax ruling is only entered into if the requesting entity is part of a group that carries out operational business operations in the Netherlands (the so-called economic nexus). Moreover, operational business operations are to be carried out in the Netherlands for the account and the risk of the stakeholder which is seeking to obtain certainty in advance. Furthermore at a group level there has to be sufficient relevant staff in the Netherlands available to carry out these activities. And these activities must match the function of the entity within the group.
b. No preliminary consultation to obtain certainty in advance in the form of a tax ruling with an international nature is being conducted if:
i. saving Dutch or foreign tax is the only or the decisive motive for the performance of the (legal) action(s) or transactions; or
ii. if the requested certainty regards the tax consequences of direct transactions with entities established in States included in the so-called Regeling laagbelastende staten en niet-coöperatieve rechtsgebieden voor belastingdoeleinden.”
A summary of every ruling with international aspects is to be published. This summary provides, among other things, a brief explanation of the facts and circumstances and (where relevant) of the most important conclusions from transfer pricing reports or other documents, of an analysis of the requested tax certainty based on the relevant legislation and regulations and of the conclusion on the basis of which the ruling was concluded.
A summary will also be published of cases in which preliminary consultations were held with the purpose to conclude a ruling with international aspects, but where that ruling was ultimately not concluded. In that case, the summary will contain an explanation of why the ruling was not concluded.
According to the Decree these summaries will be anonymized in such a way that such summary cannot be traced to an individual taxpayer.
Period for which a ruling will apply
It’s the applicant that in first instance will indicate for which period the advance certainty is requested. In principle the advance certainty laid down in a ruling with an international aspects will apply for a maximum of five financial years. If the facts and circumstances justify an exception (for example in the case of long-term contracts) a maximum period of ten financial years, with a mid-term evaluation, can be used.
Information to be provided by the taxpayer
The Decree furthermore lays down what information the applicant has to provide to the Dutch tax authorities. The request also has to contain a clear position, or clear conclusion, regarding the tax consequences of the case submitted. This position or conclusion has to be based on a technical analysis of the relevant legislation, regulations, case law and existing policy. The applicant also has to provide an analysis in which he explains in a motivated manner that there are no impediments, as referred to in paragraph 3 of the Decree, to provide certainty in advance in the form of a tax ruling with international aspects.
Elements to be included in a tax ruling
In paragraph 7, the Decree describes the elements that should be included in a tax ruling with international aspects.
Click here to be forwarded to the text of the Decree of June 19, 2019 (the Decree is only available in the Dutch language).
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