Renewed Ruling Practice in the Netherlands

We would like to inform you about the (expected) renewed Dutch ruling practice. The new ruling practice is assumed to be introduced from the 1st of July onwards. Rulings signed before the introduction of the new practice will remain in place until their expiration date and will not be subject to the proposed changes. The changes compared to the current ruling practice will be discussed below

Due to political and public attention for the Dutch ruling practice, the State Secretary of Finance, Menno Snel, decided to renew the system. In a letter to the Dutch House of Representatives, the State Secretary outlined how the renewed ruling practice would take shape. The following three key elements were addressed:

  • Transparency;
  • Process; and
  • Substance.

Transparency

The State Secretary notes that he is aware of the increased need for public information on international rulings. Therefore, the following measures will be taken for such rulings:

  • An anonymised summary will be made publicly available;
  • A yearly report will be released relating to the issued rulings; and
  • Research by independent experts will be broadened to all rulings.

Process

In order to accept rulings in a consistent way the following measure will be taken:

  • A centralized coordination will be implemented for rulings with an international nature, by introducing a committee (“College International Fiscale Zekerheid”) which needs to sign off on these rulings.
  • A new “economic nexus” requirement will be introduced;
  • Purpose of structures will be more critically reviewed. Rulings will not be accepted if tax saving, either on a Dutch or international level, is the main motive for the structure;
  • Rulings on transactions involving entities that are located in a country that is mentioned on the EU-list of non-cooperative countries or in tax havens will not be given;
  • A maximum ruling term of 5 years will be introduced. However, in exceptional cases a 10-year limit can be applicable; and
  • A fixed format will be introduced.

Although centralization of the ruling practice can contribute to the quality of the ruling process, we also expect that handling time will increase since more people will be involved in the decision to grant a ruling.

Substance

As the battle against tax avoidance remains a major issue for the Dutch government, rulings for MNE’s with limited substance in the Netherlands have been revisited. Measures regarding substance for international rulings, are as follows:

The economic nexus requirement is an open criterion. It requires that sufficient economic activities have to be performed in the Netherlands to obtain a Ruling. Furthermore, the operational costs should be in proportion to the economic activities performed in the Netherlands. The current substance list consists of clear and fixed requirements that have to be met. By introducing a new open requirement, views can however differ on whether there is sufficient economic nexus or not.

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Richard Slimmen

Quantera Global
Managing Director
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