Tax Controversy 2020

Last Updated May 20, 2020

Netherlands

Law and Practice

Authors



Stibbe handles complex legal challenges both locally and cross-border from its main offices in Amsterdam, Brussels and Luxembourg, together with its branch offices in Dubai, London and New York. By understanding the commercial objectives of clients, their position in the market and their sector or industry, Stibbe can render suitable and effective advice. From an international perspective, it works closely with other top-tier firms on cross-border matters in various jurisdictions. These relationships are non-exclusive, enabling Stibbe to assemble tailor-made integrated teams of lawyers with the best expertise and contacts for each specific project. This guarantees efficient co-ordination on cross-border transactions throughout a multitude of legal areas, irrespective of their nature or complexity.

In the Netherlands, tax controversies can arise in various ways. Tax disputes may arise as a result of a tax audit initiated by the Dutch Tax Authorities (DTA), or questions raised by the DTA (for example, after having reviewed a tax return filed by a taxpayer or as a result of a sample by the DTA). It may also occur that the DTA take notice of a transaction in the press, or receive information from foreign tax authorities, which also may result in a tax audit by, or questions from, the DTA.

Generally, it is difficult to pinpoint which taxes and matters give rise to more tax controversies than others. Tax audits of the DTA can have a broad scope and vary from individuals (personal income tax, inheritance tax), through small-sized business (income tax), to large companies (corporate income tax). Tax audits can also be focused on levies such as value-added tax (VAT), wage taxes or Dutch dividend withholding tax. From recent case law it can be seen that the DTA do not look favourably on cases in which a mismatch is created by the taxpayer (ie, a deduction of a payment, without an inclusion) or where deductible interest expenses are created artificially (for example, to offset against taxable profits).

It is up to the DTA whether to initiate a tax audit. Sometimes, with respect to certain sectors, a standard audit policy is applied; for example, to audit taxpayers in that sector once every few years. The risk of a tax audit can be mitigated or reduced by way of pre-consultation (ie, by having pre-empting discussions that would otherwise be conducted after the fact) with the DTA or by applying for an advance tax ruling (ATR) or advance pricing agreement (APA). Under certain circumstances, taxpayers also have the possibility of entering into a "horizontal monitoring" agreement with the DTA (see 6.1 Mechanisms for Tax-Related ADR in this Jurisdiction). The aim of such an agreement is to have an interactive relationship with the DTA and to inform and discuss transactions with them on a real-time basis (to pre-empt discussions arising after the DTA review the tax return).

At this moment, the exact impact of the Base Erosion and Profit Shifting (BEPS) project of the OECD on the number of tax controversies in the Netherlands is difficult to indicate. It is, however, the expectation that the number of controversies with respect to cross-border transactions and investments will increase in the coming period, since jurisdictions may interpret the BEPS rules in their own manner. In this respect, the exact impact of EU Anti-Tax Avoidance Directives (ATAD) 1 and 2 (implemented respectively by the Netherlands in 2019 and2020) also needs to be awaited. In addition, the same expectation exists considering that filings of potentially aggressive cross-border tax structures need to be made as of 1 July 2020 for the purposes of the EU Mandatory Disclosure Directive (MDD), which is also known by its acronym DAC6.

If the DTA issues a tax assessment that is appealed against by the taxpayer, then upon request of that taxpayer, in principle, a postponement of payment is granted. Depending on the circumstances this may work out differently; for example, in cases where the DTA requires a guarantee from the taxpayer to safeguard the payment of the tax assessment in the future. The Dutch tax authorities have the authority to issue – concurrently with the additional tax assessment – a fine to a taxpayer; for example, in the case of a late or incorrect filing of a tax return or not paying tax in due time.

Pending tax controversies may experience some delay due to COVID-19 restrictions. For instance, courts were closed for some time (except for extremely urgent cases) in an attempt to mitigate the spread of COVID-19. Since early April, it has been possible to try cases in court via videoconferencing. In addition, certain cases can, (in principle) with the permission of the parties, be ruled without an oral hearing. Furthermore, the Dutch court system’s policy allows the Courts of Appeal – to the extent possible – to hold physical oral hearings as per 11 May 2020 for more comprehensive and complex tax cases, and for tax cases that for other reasons are not suitable to be ruled without an oral hearing or tried in court via a virtual oral hearing. Due to these measures, pending litigation may experience delays. The amount of delay varies per case. It is not possible to make a general estimate of such delay. 

The Dutch government has adopted a number of tax measures to mitigate the economic impact of COVID-19. Taxpayers can, for instance, file a request for an extraordinary deferral of most tax payments (eg, personal income tax, corporate income tax, wage tax, VAT) for a three months period. Such a deferral will, in principle, be granted. At a later stage, if a taxpayer requests deferral for a period that exceeds three months, that taxpayer is required to demonstrate that COVID-19 has led to financial difficulty, after which an individual assessment may follow. In addition, late interest payable on any tax due is temporarily reduced to 0.01%. Furthermore, the policy to issue administrative penalties for late payment of taxes has been relaxed. Generally speaking, we do not expect that COVID-19 will have a significant impact on pending (court) cases or new ones, but the possibility that, as a result of COVID-19, specific tax questions will come up (for example in view of restructuring(s) or otherwise), which may be viewed differently by the taxpayer and the tax authorities, cannot be excluded. 

The DTA have discretion over whether to initiate a tax audit or not. In this regard, the DTA have certain areas of focus. For example, within the group of individuals, very high net worth individuals (with assets of more than EUR25 million) are a specific area of attention. When dealing with large companies, combating and preventing tax avoidance is an important area of focus, as well as transfer pricing.

The decision of whether to initiate a tax audit is driven by various factors, such as the (tax) attitude and behaviour of the relevant taxpayers, information derived through company interviews and samples, or information from third parties. Based on these factors (amongst others), a risk analysis is made by the DTA to determine whether to carry out a tax audit. In principle, there is no time limit regarding the finalisation of the audit, but of course, the DTA do need to take into consideration the time limits within which a tax assessment should be issued to the taxpayer (see further below).

Regarding the statute of limitations rules, a distinction should be made between taxes that are levied by means of a tax assessment issued by the DTA after a taxpayer has filed a tax return (such as the Dutch corporate income tax and personal income tax) and taxes that are based on a self-assessment (such as VAT and wage tax).

With respect to taxes that are levied by way of a tax assessment, the tax inspector is, in principle, required to issue a (final) assessment within three years after the end of a tax year. Further to that, the DTA have, under certain circumstances, the authority to issue an additional assessment to a taxpayer, which, in principle, needs to be issued within five years after the relevant tax year (under certain circumstances, notably in relation to foreign income, the period of five years is extended to 12). To issue an additional tax assessment, a so-called qualifying new fact must be present. This is not required if the taxpayer has acted in bad faith.

With respect to taxes that are based on self-assessment, the taxes are payable shortly after the self-assessment has been made. In those cases, in principle, the tax return is the formal basis for the levy and no separate tax assessment is issued by the tax inspector. In the case of an underpayment of tax, the DTA have the possibility to issue an additional tax assessment to a taxpayer within five years after the year in which the taxable event took place.

In the case of a tax audit, the statute of limitations described above needs to be respected. In practice, the DTA have the authority to issue an ex officio tax assessment if, during a tax audit, there is a risk of exceeding the terms referred to above.

Tax audits are generally performed at the premises of a taxpayer. In principle, an audit can be performed based on printed documents or data made available electronically. The Dutch tax authorities may perform the audit by reviewing (hard) copies of documents provided by the taxpayer, or via data derived from software applications used by the taxpayer.

As set out in 2.1 Main Rules Determining Tax Audits, the DTA focus on combating and preventing tax avoidance as well as transfer pricing when dealing with large companies. In this respect, the DTA hold the view that (international) tax avoidance can be best tackled in co-operation with other jurisdictions, civil society organisations and private parties; for example, by way of bilateral or multilateral tax audits. It is also the expectation of the DTA that the country-by-country report(s) that need(s) to be filed will provide further information for tax audit purposes. This is likely also true for filings that need to be made as of 1 July 2020 for the purposes of DAC6.

More generally, it is the objective of the DTA that individuals and companies comply with their tax obligations on their own as much as possible. To achieve this, companies have, under certain circumstances, the possibility of entering into a horizontal monitoring agreement with the DTA, which in essence means that a taxpayer exchanges information regarding its (tax) strategy, tax control framework and transactions that could have a (material) tax impact on a real-time basis. Accordingly, applying horizontal monitoring is expected to result in fewer tax audits for a taxpayer. In this regard, it should however be considered that in the DTA’s 2020 Tax Plan it is announced that the current horizontal monitoring agreement for the top 100 large and complex companies will expire and that those companies will be subject to an individual monitoring plan. The exact manner in which these changes will be given effect has not yet been revealed.

It is difficult to assess at this moment whether the rules concerning cross-border exchanges of information and mutual assistance between the tax authorities (on tax audits) has led to a marked increase of tax audits in the Netherlands, as official numbers are not available. However, the general sentiment is that international administrative co-operation may lead to an increase of audits inspired by data or queries that are exchanged.

If a foreign tax authority has questions in relation to a Dutch taxpayer, these questions will be asked by the Dutch tax inspector, which assumes that the Dutch and foreign tax inspector are in contact with each other, but it is also possible that the Dutch tax inspector is assisted in person by a (foreign) tax inspector.

A key point that should be taken into consideration is the scope of the audit. Next to that in importance is asking the DTA to put their questions in writing, which gives the taxpayer the opportunity to properly think through the questions raised by the DTA.

If a taxpayer does not agree with a tax assessment issued by the DTA (or would like to lodge an objection against a tax that was levied based on self-assessment of the taxpayer; see 2.2 Initiation and Duration of a Tax Audit), the taxpayer has the possibility to file a so-called administrative appeal against the tax assessment. The appeal needs to be filed within six weeks after the tax assessment has been issued. If a taxpayer does not respect the period of six weeks, the appeal is in principle declared inadmissible. During the administrative appeal phase, a taxpayer has certain rights (such as a hearing and consultation of its tax file). The aim of the administrative appeal is a reconsideration of the tax assessment by tax inspectors that are new to the case. The initiation of an administrative appeal does not trigger costs for the taxpayer. The administrative appeal is finalised with a decision of the DTA, which can be challenged before a court (see 4 Judicial Litigation: First Instance). Under certain circumstances, the taxpayer and the DTA may agree to skip the administrative appeal, which, however, is not common practice. Finally, filing an administrative appeal should, in principle not put the taxpayer in a worse position as compared to the tax assessment issued by the DTA.

The DTA, in principle, need to decide on the administrative appeal within six weeks. If the DTA fail to decide on the administrative appeal in time, the taxpayer can lodge an appeal (ie, when the term to decide on the appeal has passed, the law assumes that a decision has been taken that can be appealed by the taxpayer).

Once the administrative procedure has been finalised (see 3 Administrative Litigation), a taxpayer may bring the case before a court. At first instance, the case will be judged by a Lower Court (Rechtbank). The procedure at first instance is initiated by filing an appeal against the decision made by the DTA during the administrative appeal procedure. The appeal needs to be filed within six weeks after the decision on the administrative appeal; otherwise the appeal will in principle be declared inadmissible. To initiate the appeal, the taxpayer needs to pay a registration fee.

During the appeal, the taxpayer further substantiates the grounds of appeal, whereas the tax inspector is expected to file a statement of opposition. Under certain circumstances, parties are given the opportunity by the court to respond to each other's views in writing. Parties have the right to file documents with the court up to ten days before the date of the court hearing (which in principle is not a public session). It is not required that a lawyer or tax adviser represents the taxpayer during the procedure.

During the court procedure in first instance, the facts of the case will be debated as well as the underlying tax question. In principle, the court will take a decision within six weeks from the court hearing. This term may however be extended. The decision of the court may be published on an anonymised basis. Finally, the court has the possibility to ask the Dutch Supreme Court (Hoge Raad) for a preliminary ruling, which may occur if it concerns a legal (tax) question that stretches beyond the pending case.

This depends on the tax question pending. If the case deals particularly with the interpretation of tax law, there is little need to involve witnesses in the case (unless, for example, the opinion of an expert witness may be helpful to convince the court). On the other hand, in very factual cases, witnesses may be helpful to support a case, especially in situations where the burden of proof lies with the taxpayer. In those situations, the taxpayer may work with both written statements from witnesses and formal statements during the court hearing.

This would depend on the case. However, as a general rule, if the taxpayer is the party claiming a deduction or an exemption, the burden of proof lies with the taxpayer and it is up to the Dutch tax authorities to underpin the plausibility of an upward correction.

Strategic options depend on a case-by-case analysis and are not easy to describe in general terms.

In Dutch (tax) case law it is determined that the OECD Commentary is a relevant factor that should be taken into consideration when deciding on a case. The (tax) court(s) also take the jurisprudence of the ECJ and ECHR into account when deciding on cases. The Dutch (tax) court also may defer a case to the ECJ if it deems it relevant. In addition, the Dutch Supreme Court (and certain other courts) may defer preliminary questions to the ECHR.

A taxpayer (as well as the DTA) has the right to file an appeal against the decision by the Lower Court. The appeal should be filed within six weeks after the decision of the Lower Court (a one-time opportunity). In appeal, the case will be handled by a Court of Appeal (Gerechtshof).

If a taxpayer or the DTA (or both) do not agree with the decision of the Court of Appeal, the parties have the possibility to lodge an appeal with the Dutch Supreme Court (Hoge Raad). In this cassation procedure before the Supreme Court, parties no longer have the possibility to discuss the facts of the case. The Supreme Court (in short) will only test whether there has been a breach of law, or whether the decision has been inadequately motivated (or is incomprehensible).

The procedure before the Court of Appeal is similar to the procedure before the Lower Court (referred to in 4.2 Procedure of Judicial Tax Litigation).

The procedure in cassation starts with the filing of an appeal within six weeks after the decision of the Court of Appeal. The other party in the procedure will be entitled to file a statement of opposition followed by a reply and a rejoinder. In important cases, an advocate-general often takes an (independent) conclusion to give his or her view about the case. Generally, it is not common that a hearing takes place in person or in writing, including pleadings. In its ruling, the Dutch Supreme Court has the authority to declare the appeal unfounded or founded. In the latter case, the Dutch Supreme Court may itself give a final judgment or refer the case to another Court of Appeal.

At first instance and appeal, the tax case is decided by one or three judges, depending on the type and complexity of the case in question. Cases before the Dutch Supreme Court are decided by three or, in more difficult cases, five judges. Judges are appointed by way of a royal decree. It is up to the court to determine the composition of the judges who will decide on a case.

There are several ADR mechanisms in the Netherlands to resolve tax disputes between taxpayers and the DTA. The Dutch ruling practice, which to some extent may be considered an ADR mechanism, is covered first. Horizontal monitoring, which serves the purpose of avoiding (future) tax disputes and disagreements, is discussed next. Subsequently, mediation is elaborated upon as a way to resolve tax disputes between the DTA and the taxpayers.

Dutch Ruling Practice

The Dutch tax ruling practice allows taxpayers to obtain certainty in advance from the DTA on certain transactions in the form of an APA or an ATR. An APA provides certainty in advance on the Dutch transfer pricing treatment of certain intragroup dealings of the taxpayer. It is also possible to conclude a multilateral APA with other jurisdictions involved. An ATR provides certainty in advance on a variety of Dutch tax topics in relation to particular transactions.

The Dutch tax ruling practice essentially brings forward any disagreement or dispute between the DTA and the taxpayer on the interpretation of Dutch tax law or the Dutch tax treatment of certain transactions. It provides Dutch taxpayers the opportunity to openly discuss with tax specialists of the DTA the relevant facts and circumstances of the case at hand, as well as the correct Dutch tax treatment thereof, prior to entering into such transactions. If parties come to an agreement, the DTA and the relevant taxpayer enter into an APA/ATR settlement agreement.

However, the conclusion of an APA/ATR settlement agreement does not preclude the DTA from conducting tax audits. Especially in respect of APA settlement agreements, taxpayers may expect regular tax audits from the DTA to check whether the transfer prices that are being used are in accordance with the APA settlement agreement.

The Dutch tax ruling practice for international tax rulings has been revised as of 1 July 2019. Under the revised rules, taxpayers must meet stricter measures to obtain a Dutch international tax ruling:

  • the relevant taxpayer needs to have sufficient "economic nexus" with the Netherlands,
  • the sole or decisive motive of the relevant structure must not be to avoid Dutch or foreign taxes; and
  • the relevant transaction or structure is not carried out with a country that is mentioned on the Dutch list of so-called "low-tax jurisdictions" and/or the EU list of non-cooperative jurisdictions.

Procedural aspects of the Dutch ruling practice

A request for an APA/ATR ruling is generally filed with the competent tax inspector of the taxpayer. The request should in any case include:

  • a detailed description of the relevant facts and circumstances;
  • factual information on the relevant companies; and
  • a list of the other jurisdictions concerned.

APA/ATR requests generally have an international angle (eg, cross-border investments, foreign shareholders), in which case the competent tax inspector will involve the so-called International Fiscal Affairs Team (Behandelteam IFZ) of the DTA. To the extent necessary, the DTA will ask follow-up questions and/or request further information from the taxpayer on, inter alia, the relevant facts and transactions set out in the request. In the course of the Dutch tax ruling process, a taxpayer may thus be communicating directly with the tax specialists of the DTA. The DTA aims to process an APA/ATR request within six to eight weeks.

Under the revised rules for international tax rulings, the College of International Fiscal Affairs (College IFZ), must sign-off all tax rulings with an international character. This should ensure the uniformity and quality of international tax rulings. In addition, an anonymised summary of each international tax ruling is published on the DTA’s webpage. The same holds true for a withdrawn or denied ruling request.

Horizontal Monitoring

Rather than being subject to "vertical monitoring", which is based on auditing the taxpayer's affairs retrospectively, taxpayers can also be subject to horizontal monitoring. In horizontal monitoring, the DTA and the taxpayer formally commit to build and have a relationship based on mutual trust, understanding and transparency. This essentially means that the DTA will rely on the willingness of the taxpayers to file correct tax returns. The taxpayer that is subject to horizontal monitoring is generally obliged to submit its view on all relevant matters to the DTA as soon as practically possible, so that any possible differences of opinion between the DTA and the taxpayer are resolved before the tax return is filed. Hence, horizontal monitoring in and of itself may also be considered a form of ADR.

Procedural aspects of horizontal monitoring

Horizontal monitoring originally focused on large and medium-sized corporate taxpayers being "in control" of their tax affairs. To be eligible for horizontal monitoring taxpayers should generally have in place a sound tax control framework. If the DTA and the taxpayer agree to horizontal monitoring, they enter into a horizontal monitoring agreement (handhavingscovenant), which lays down the fundamentals and underlying principles forming the basis of their relationship to achieve an effective and efficient mode of operation. It should however be noted that a horizontal monitoring agreement does not preclude the DTA from conducting tax audits. As described in 2.4. Areas of Special Attention in Tax Audits, it should be noted that the DTA have announced that they plan to reform horizontal monitoring.

Mediation

In 2005 the DTA introduced a pilot programme for mediation to resolve tax disputes/disagreements with taxpayers. Since then, mediation has taken a modest step forward; it is, however, still not commonly used to resolve tax disputes/disagreements with taxpayers.

At any stage of the tax dispute it is possible to initiate mediation. This can be at the request of the DTA, or the Dutch taxpayer and, in some cases, through referral by a Dutch tax court. Not all disputes are suitable for mediation. Mediation is in principle generally only suitable for disputes that go beyond the mere interpretation of law. Tax disputes resolved through mediation generally also have a "personal element" to them; a taxpayer may, for instance, be upset about the way in which he or she was approached or treated by the DTA during a tax audit. During the mediation, the regular administrative or judicial procedure between the DTA and the taxpayer is put on hold. The procedure only resumes if the dispute is not, or only partially, resolved through mediation. If mediation has partially resolved the dispute, the regular administrative or judicial procedure resumes only in respect of the unresolved items.

Procedural aspects of mediation

For mediation, the DTA usually works with independent mediators who are registered with the Dutch federation of mediators (MFN). The mediator should adhere (and is subject) to the mediation regulations and professional conduct standards of the MFN. The mediator first meets with the taxpayer and the relevant tax inspector to explain his or her approach to them. A taxpayer may bring his or her tax adviser/lawyer to provide assistance (this may be helpful if there are technical legal aspects to the dispute). Both parties then enter into a mediation agreement, which sets out the general terms of the mediation procedure and their procedural rights and duties. Confidentiality plays a pivotal role in mediation. All that is said and done during mediation is in principle strictly confidential and cannot be used by either party in any context other than the mediation. The costs of mediation are generally lower than the costs of a regular administrative and judicial procedure. Generally, if a Dutch tax court initiates meditation through referral, the parties have to split the costs of the mediation.

Under the existing and above-mentioned ADR mechanisms in the Netherlands, tax disputes and disagreements between the DTA and taxpayers are in principle resolved by means of entering into a settlement agreement. The settlement agreement is a Dutch civil law agreement governed by the general principles and provisions of the Dutch Civil Code. In principle, a settlement agreement is binding on both parties. Settlement agreements generally include provisions pursuant to which parties agree and acknowledge to refrain from (continuing) any further administrative or judicial proceedings.

Based on the published policy of the Dutch State Secretary of Finance, the DTA is prohibited from concluding settlement agreements that are in clear violation of Dutch (tax) law (certain other restrictions are imposed on the DTA as well). In addition, the DTA must at all times abide by general Dutch public law principles (eg, the general principles of equality, due care, fair play and protection of legitimate expectations) in its dealings with taxpayers. With respect to settlement agreements, in some cases this might lead to situations in which parties entered into a valid settlement agreement according to Dutch civil law standards, but the settlement agreement cannot be binding on the taxpayer, because the DTA did not abide by the general public law principles. An example could be a situation in which the taxpayer was not given sufficient time to review and comment on the settlement agreement proposed by the DTA.

If parties resolve their tax dispute through mediation, they generally enter into a settlement agreement. It is established case law that settlement agreements may also be concluded to resolve disputes or disagreements on the amount of tax due or the applicable interest and/or administrative penalties. However, based on the policy of the Dutch State Secretary of Finance, the DTA is prohibited from settling any dispute or disagreement on applicable interest, administrative penalties and/or legal costs if, in combination therewith, a trade-off took place between the DTA and the taxpayer on certain other elements regarding the levy and/or collection of taxes.

During the term of an APA/ATR settlement agreement (generally five years), the DTA may in principle not impose tax assessments in deviation of what is agreed in the APA/ATR settlement agreement, provided that in the meantime there are no major changes in tax law or the underlying facts and circumstances (and in certain cases – as per July 2019 – a change in jurisprudence or policy of the DTA). Similarly, the taxpayer cannot in principle lodge an objection against a tax assessment that is imposed in accordance with what is agreed in the APA/ATR. In view of the foregoing, the Dutch tax ruling practice is an effective way for taxpayers to obtain certainty in advance and to mitigate tax disputes with the DTA.

The DTA and the taxpayer may, at any time, try to resolve a (future) dispute or disagreement through bilateral negotiations and bilateral settlement without the involvement of a court or mediator. Bilateral settlements between the DTA and the taxpayer do not have a prescribed form or procedure. It is nonetheless relevant to mention that in its (legal) relationship with the taxpayer the DTA is bound by general public law principles (eg, the general principles of equality, due care, fair play and protection of legitimate expectations). This also applies if the DTA and the taxpayer are in negotiations to resolve their tax dispute.

Under certain double tax treaties, taxpayers with a cross-border footprint that are confronted, or are likely to be confronted, with double taxation may apply for a mutual agreement procedure (MAP) to eliminate double taxation emanating from their cross-border activities. In the EU the European arbitration convention and the EU Tax Dispute Resolution Mechanisms Directive, which was adopted on 10 October 2017 by the European Council and implemented by the Netherlands in the Tax Arbitration Law, provide taxpayers with the possibility of initiating a MAP and, if necessary, under certain circumstances, a tax arbitration procedure to eliminate its double taxation. In addition, the Multilateral Convention regarding tax treaty-related measures to prevent BEPS (MLI) also has an (optional) mandatory binding treaty arbitration provision. The Netherlands has opted to apply the MLI arbitration clause. The MAP and tax arbitration procedures strictly speaking, do not directly involve the taxpayer; the taxpayer is only an interested party to a procedure between two jurisdictions. In view of this, there will be no further elaboration on these procedures in this section on ADR mechanisms.

See 6.1 Mechanisms for Tax-Related ADR in this Jurisdiction.

If a taxpayer is confronted with an additional tax assessment, the additional assessment can be increased with interest on unpaid taxes (belastingrente) or interest on overdue taxes (invorderingsrente) and tax penalties. In some cases, the upfront payment of taxes mitigates the risk of interest on tax being imposed.

In Dutch tax law, three types of tax penalties can be distinguished (two types of administrative penalties and one category of criminal penalties). The legal basis for this is found in the General Dutch State Taxes Act (GSTA), which is the source of administrative law on Dutch taxation/tax laws and, inter alia, sets out the manner in which the DTA can levy Dutch taxes, provides taxpayers with the means to object to infringements of their rights, and provides for the legal basis for the DTA to impose administrative tax fines/penalties on Dutch taxpayers in certain situations.        

The two types of administrative tax penalties that can be imposed by the DTA on taxpayers are as follows: (i) for minor omissions such as late filing or payment (punishable with minor administrative tax penalties) (verzuimboetes); and (ii) for tax offences (both acts and omissions) involving wilful misconduct or gross negligence (punishable with administrative tax penalties) that, for instance, deal with the failure to pay taxes in a timely fashion or file tax returns correctly (vergrijpboetes).

The GSTA also provides for criminal penalties. Criminal tax offences are imposed on taxpayers by a Dutch court following a public prosecution by the public prosecutor’s office. In addition, the Dutch Criminal Code also provides for a legal basis to penalise criminal offences in relation to taxes (eg, forgery of documents or participation in a criminal organisation with the purpose of committing crimes).

Penalties for tax offences (vergrijpboetes) and criminal penalties may also be imposed on aiders and abettors, which, for the avoidance of doubt, can include a tax advisor. In addition, penalties for tax offences imposed on advisors in respect of aiding or abetting in relation to tax avoidance or fraud in respect of allowances may be made public as of 1 January 2020.

Administrative tax cases or tax audits may trigger criminal investigations into a taxpayer's affairs. Embedded in Dutch law is the una via principle, pursuant to which taxpayers are generally protected from double sanctioning. In other words, a taxpayer's tax offence should be handled by the DTA by means of an administrative procedure or by the public prosecutor by means of criminal procedure. In addition, notwithstanding the fact that administrative penalties are not criminal penalties, they are – due to their punitive character – for certain purposes characterised as so-called criminal charges. This entails that the structure and level of administrative legal protection must meet international human rights standards that apply to criminal tax charges.

In addition, the DTA can request that taxpayers furnish them with information for the purpose of, or in connection with, imposing correct tax assessments. The DTA and the prosecutor's office also have the power to impose tax penalties on, or commence tax criminal proceedings against, taxpayers. Tension exists between these powers in light of the nemo tenetur principle (ie, taxpayers have the right to remain silent and not incriminate themselves). In so far as it concerns evidentiary material whose existence is dependent on the will of the taxpayer (will-dependent material), the principle is that the surrender of such material may be coerced for the purposes of levying tax. However, if a taxpayer is, or will be, subject to punitive charges, the DTA or the prosecutor's office are prohibited from resorting to such will-dependent evidence obtained through methods of coercion or oppression. If the DTA cannot exclude the possibility that will-dependent material may also be used in connection with a "criminal charge" against the taxpayer (ie, punitive charges), the DTA must provide safeguards to the taxpayer, so he or she can effectively exercise his or her right not to incriminate him or herself. In the event that such will-dependent material is coerced for the purposes of levying tax and subsequently used for the purpose of imposing punitive tax penalties, it will be for the Dutch court to decide what consequences it attaches to the use thereof; the evidence could potentially be excluded. The taxpayer's privilege against self-incrimination does not extend to the use of materials that exist independent of the will of the taxpayer and that are obtained from the taxpayer through recourse to compulsory powers.

It is not uncommon that tax crimes are discovered during a tax audit or administrative proceedings. It is also not uncommon for the public prosecutor's office to commence general criminal law proceedings against taxpayers following, or simultaneously with, the administrative proceeding against the relevant taxpayers. This does not necessarily contravene the una via principle if the taxpayer faces two materially different charges. In view of this, there would be no need to suspend punitive criminal or administrative proceedings while a tax court verifies the amount of taxes due.

First instance criminal proceedings comprise of two phases. They start with the pre-trial criminal investigations performed under the supervision of, and directed by, the prosecutor's office. Subsequently, the investigating judge starts the preliminary judicial investigation. On the basis of these phases the prosecutor's office eventually has to determine whether to drop the case, settle the case out of court or prosecute the taxpayer.

A case is generally dropped if the prosecutor's office feels it has insufficient material to prove the charges. The prosecutor's office may also opt to settle the case by means of a transaction, whereby the taxpayer generally has to pay a sum of money to the Dutch treasury and/or fulfil one or more (financial) conditions. If the prosecutor's office decides to prosecute the taxpayer, the trial stage starts, during which the taxpayer has the right to be heard. Criminal tax offences are dealt with by the Dutch criminal courts. Court hearings are held in public (certain exceptions apply).

Upfront payment of tax assessments may, in certain situations, help to mitigate interest and penalties being charged (notably interest and penalties imposed on taxpayers for late payment). Penalties due because of tax offences involving gross negligence or intention may generally not be mitigated by upfront payment.

The prosecutor's office may opt to settle a tax criminal case by means of a transaction, whereby the taxpayer generally has to pay a sum of money to the Dutch treasury and/or fulfil one or more (financial) conditions. A transaction can be offered if the crime carries a statutory prison sentence of less than six years. Guidelines on the offering of transactions exist in an effort to mitigate arbitrariness and create uniformity with respect to the cases that are settled through transactions.

If a taxpayer or the prosecutor's office wants to appeal a judgment of the district court, it can file for appeal with the competent Court of Appeal (Gerechtshof). Subsequently, parties may bring their case before the Dutch Supreme Court.

It is not uncommon for criminal tax cases to commence following, or simultaneously with, regular tax proceedings. However, it generally requires more than transactions that are merely challenged on the basis of tax concepts such as general anti-avoidance rules (GAAR) or transfer pricing rules. An example in the Netherlands that has led to criminal tax proceedings deals with VAT carousel fraud, which generally requires more than one participant. Hence, in the Netherlands taxpayers involved in VAT carousel fraud have been subject to administrative proceedings (eg, failure to file correct tax returns and/or pay the correct amount of VAT, including penalties) and general criminal proceedings; eg, participation in a criminal organisation for the purpose of committing crimes.

With reference to Dutch case law, we furthermore note that, in cases where a GAAR is applied (for the first time), it may be challenging for the DTA to issue a fine because, based on for example available tax literature and parliamentary history, the taxpayer may have a defensible position (pleitbaar standpunt).         

Economic double taxation generally occurs between associated enterprises of different states as a result of an upward transfer pricing adjustment by one of the states. Judicial double taxation refers to a taxpayer being subject to tax on the same income in more than one jurisdiction; for instance, because the taxpayer is considered a resident of two jurisdictions and as such is potentially subject to full taxation in both jurisdictions. The majority of Dutch cross-border procedures on double taxation relate to economic double taxation emanating from transfer pricing adjustments.

The Netherlands has an extensive double taxation treaty network, the majority of which include a provision to ensure that a contracting state makes a corresponding downward adjustment, if the other contracting state makes an upward adjustment. In addition, there is generally also an obligation included to enter into a mutual agreement procedure to eliminate double taxation. However, the double taxation treaties generally do not impose a binding obligation on both contracting states to eliminate the double taxation of a taxpayer. Approximately 400 disputes are brought up for a mutual agreement procedure by the Netherlands. Further, as set out in 6.5 Further Particulars Concerning Tax ADR Mechanisms the MLI has an optional mandatory binding treaty arbitration provision, which the Netherlands has opted to apply. 

Within the EU, the arbitration convention provides for the elimination of double taxation by agreement between the member states, including, if necessary, by reference to the opinion of an independent advisory body. Its scope is limited to double taxation as a result of upward adjustments (transfer pricing) and double taxation in connection with permanent establishments. It lacks an enforceable obligation to eliminate double taxation. The EU Tax Dispute Resolution Mechanisms Directive, implemented by the Netherlands by way of the Tax Arbitration Law, is intended to fill the voids of the arbitration convention. Key aspects of the directive are:

  • under certain circumstances, an enforceable obligation to arrive at a resolution for the taxpayer's double taxation;
  • recourse to national courts for taxpayers to unblock procedures;
  • the requirement of clear and statutorily defined procedural timelines; and
  • importantly, that the scope is extended to all disputes between member states that derive from double taxation treaties (eg, disputes in respect of the interpretation and/or application of the double tax treaty, the taxpayer's residency and the applicable withholding tax rate).

The Dutch implementation of the directive provides improved access and increased involvement for the relevant taxpayer, as well as clear and shorter timeframes.

The DTA have found it difficult to fight BEPS in cross-border situations. On several occasions the DTA has tried to apply the Dutch doctrine of abuse of law (fraus legis), but has rarely done so successfully. Under the fraus legis doctrine, a tax inspector may substitute a fact pattern that does not lead to taxation with a fact pattern that does if:

  • the taxpayer has created a situation in which tax cannot be imposed, but which approximates one in which tax could be imposed;
  • tax avoidance is the taxpayer’s predominant motive; and
  • the purpose and intent of the tax law would be frustrated if the non-taxable fact pattern is not treated as a taxable fact pattern.

In this regard is should however be considered that the Dutch Supreme Court has ruled that even if the DTA successfully argues fraus legis, the taxpayer may still have a reasonably arguable position, which prevents a penalty for a tax offence (vergrijpboete) as set out in 7.1 Interaction of Tax Assessments with Tax Infringements.

Fraus conventionis is a doctrine with respect to the application of double taxation treaties under which a (non-taxable) fact pattern may be ignored and substituted by a taxable fact pattern under the relevant double taxation treaty to the extent that the former would frustrate the object and purpose of the double taxation treaty. The Dutch Supreme Court has generally not applied this doctrine in cross-border situations and in some cases has even ruled against it. It should however be considered that these cases were decided based upon the "old" OECD commentary, making it unclear whether today this is still the view of the Dutch Supreme Court. One should be aware that last-minute tax planning to obtain treaty benefits may in some specific cases be vulnerable to a "substance over form" approach.

The Netherlands signed the MLI in double taxation treaty situations. The MLI entered into force with regard to the Netherlands on 1 July 2019. As a result, tax treaties concluded by the Netherlands might be affected by the MLI as of 1 January 2020. Under the MLI, the relevant measures will amend the double taxation treaties concluded by the Netherlands (the timing thereof depends on the ratification process of its treaty partners). Important changes that will affect all the submitted Dutch covered double taxation treaties relate to the introduction of a principal purpose test (PPT) and the amendment of the preamble to the extent that double taxation treaties are not intended to create double non-taxation or reduced taxation. The former might make it easier for the DTA to combat BEPS in cross-border situations as it provides ground to prevent the granting of treaty benefits in cross-border situations found to be inappropriate.

The GAAR included in the EU Parent-Subsidiary Directive is designed as a common minimum anti-abuse rule within the EU, aimed at preventing misuses of the directive through arrangements or series of arrangements that are not genuine and do not reflect economic reality. In the Netherlands the implementation of the GAAR has been limited to modifications of two existing anti-abuse rules: (i) the corporate income tax anti-abuse rules for foreign shareholders with a shareholding of 5% or more (ie, a substantial interest) in a Dutch resident company; and (ii) the dividend withholding tax anti-abuse rules for co-operatives.

The GAAR included in the ATAD consists of three requirements that need to be met for an arrangement or a series of arrangements, for the purposes of calculating the tax liability, to be ignored:

  • the main purpose or one of the main purposes is obtaining a tax advantage ("subjective criterion");
  • that defeats the object or purpose of the applicable tax law ("objective criterion"); and
  • that is/are not genuine having regard to all relevant facts and circumstances.

The Dutch government is of the opinion that there is no need for the Netherlands to implement the ATAD GAAR, because Dutch tax law already includes a similar concept, namely that of the unwritten doctrine of abuse of law (fraus legis), see above.

The majority of cases are challenged domestically, although there has been an increase in MAP proceedings. Further, taking into account the implementation of the Tax Dispute Resolution Mechanisms Directive, it is expected that more taxpayers will challenge transfer pricing adjustments.

The conclusion of APAs is a common mechanism in the Netherlands to mitigate transfer pricing litigation in the Netherlands. The common features and procedural aspects have been set out in 6.1 Mechanisms for Tax-Related ADR in this Jurisdiction.

The majority of the litigation in respect of cross-border situations comes from transfer pricing issues. Further, it is expected that the share of withholding tax issues will increase in the coming years, prompted by EU case law from the ECJ regarding the concept of beneficial ownership and tax avoidance, such as the “Danish cases” in which the ECJ ruled on 26 February 2019. All in all, an increase of tax litigation in cross-border situations is expected; on the one hand, because of the BEPS project and the implementation of the EU regulations countering tax avoidance that should give the DTA new instruments to tackle tax avoidance and contest the tax positions of taxpayers, and on the other hand, because of the BEPS and EU initiatives that should provide better protection to taxpayers who are faced with double taxation due to their cross-border footprint.

The administrative appeal procedure is initiated by lodging an objection against a tax assessment or against any other decision of the DTA to which an objection can be lodged. The DTA does not charge costs for handling the objection of the taxpayer. A taxpayer can request a reimbursement for costs incurred in relation to its administrative appeal, which request is granted only if certain conditions are met; eg, the DTA makes a culpable mistake and revisits its earlier decision. The reimbursement of costs is generally around EUR261 (2020) but may be higher depending on the complexity of the case at hand.

If the DTA rules against the taxpayer in the administrative appeal, the taxpayer may decide to file for appeal. If so, the taxpayer has to pay court registry fees at the start of the proceedings, the amount of which varies depending, inter alia, on whether the taxpayer is an individual or a legal entity and the characteristics of the case.

For individuals, the court registry fee for district court tax ligation in first instance amounts to EUR178 (2020) if the appeal relates to dividend withholding tax, turnover tax, excise duties, taxation of passenger cars and motorcycles, consumption tax on non-alcoholic beverages, environmental taxes or customs law. In all other cases, the court registry fee for individuals amounts to EUR48 (2020). For legal entities, the court registry fee for district court tax litigation in first instance amounts to EUR354 (2020) irrespective of the taxes to which the case relates.

At the court of appeal for tax litigation, the court registry fee for individuals amounts to EUR265 (2020) if the appeal relates to dividend withholding tax, turnover tax, excise duties, taxation of passenger cars and motorcycles, consumption tax on non-alcoholic beverages, environmental taxes and customs law. In all other cases, the court registry fee amounts to EUR131 (2020). For legal entities, the court registry fee for tax litigation at the court of appeal amounts to EUR532 (2020) irrespective of the taxes to which the case relates.

A case can be brought before the Dutch Supreme Court. If so, the court registry fees are the same as the court registry fees for tax litigation at the court of appeal (see above). All court registry fees have to be paid up front.

If the court rules against the DTA or the Dutch State Secretary of the Ministry of Finance in tax litigation before the Dutch Supreme Court, they have to repay the amount of the court registry fee to the taxpayer. The court may also order the DTA (or the State Secretary) to reimburse the taxpayer's legal costs. In addition, in certain specific situations – and only if the taxpayer files a claim to that extent – a court may order the DTA to pay damages to the taxpayer, which could, for instance, be the case if the taxpayer suffers damages as a result of a wrongful act, omission or decision of the DTA.

Mediation may be an efficient option (including in terms of cost) for taxpayers to resolve their tax disputes with the DTA (depending also on whether the taxpayer engages legal advisers, etc). The costs for mediation mainly comprise of the fees of the mediator, the amount of which typically depends on the time spent.

Apart from the legal fees a taxpayer may incur in the process of negotiating a settlement with the DTA or obtaining advance clearance from the DTA in the form of an APA/ATR settlement agreement, there are no costs associated with these two ways of resolving tax disputes or disagreements with the DTA.

Each year approximately 25,000 tax cases are brought before the Court of First Appeal. In 2017 there was a decrease in tax cases, the main driver of which was that there was less litigation by taxpayers challenging the DTA's valuation of their real property. Certain taxes are calculated using as a basis the value of a taxpayer's real property as determined by the DTA. In an effort to lower their tax burden, taxpayers may start litigation on the DTA’s valuation of their real property. In 2018 there was an increase in tax cases brought before the Court of First Appeal of 7%. What stands out in that respect is that tax litigation under the Dutch Private Motor Vehicle and Motorcycle Tax Act 1992 more than doubled in 2018.

There has been a downward trend with respect to the number of tax cases brought before the Court of Appeals, albeit that there was a slight increase in 2018. In 2017 approximately 3,800 cases were brought before the Court of Appeals against approximately 4,000 in 2018.

The expectation is that the number of tax cases will begin to increase in the coming years due to the changed international tax environment following the BEPS project and the implementation of the EU initiatives against tax avoidance. These developments will likely prompt more active enforcement by the DTA.

No such data is available.

No such data is available.

The BEPS project and the implementation of the EU regulations countering tax avoidance give the DTA new instruments to tackle tax avoidance and contest the tax positions of taxpayers. In addition, under the principle purpose test of the MLI, taxpayers may be denied treaty benefits. Furthermore, tax authorities around the world are increasingly sharing more and more information on taxpayers. In addition, taxpayers and their intermediaries active in the EU will be subject to a mandatory disclosure obligation in respect of cross-border potentially aggressive tax-planning arrangements based on DAC6, which was adopted on 25 May 2018 and will come into effect on 1 July 2020. In principle the mandatory disclosure rules apply to intermediaries. In certain specific cases, however, the mandatory disclosure rules apply to, or shift to, the relevant taxpayer. This may, for instance, be the case when there is attorney-client privilege or when there is no intermediary involved with respect to the cross-border potentially aggressive tax planning arrangement(s). Tax authorities within the EU will share the information received on the basis of the directive.

Taxpayers should consider developing tax risk-management policies, procedures and processes in this changing tax environment. Taxpayers need to be proactive to prevent and manage tax disputes and disagreements with the DTA. Taxpayers without a comprehensive and sound approach on detecting potential tax risks and the management thereof are likely to be more vulnerable to the scrutiny of the tax authorities.

It nevertheless may be inevitable that tax disputes and disagreements with the DTA arise. As a result of the changing global tax environment, taxpayers are likely to be confronted with tax audits and tax disputes by the DTA more frequently. In these cases, it generally helps if the taxpayer already has a good understanding of the various mechanisms available to the taxpayer to resolve the tax dispute/disagreement and of the pros and cons thereof (eg. mediation and litigation).

In addition, it generally helps if the taxpayer has historically had, and continues to have, an open and good relationship with the DTA. This increases the taxpayer's chances of settling the tax dispute/disagreement in the early stages (if that is something the taxpayer desires).

Stibbe

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Trends and Developments


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Allen & Overy LLP is an international legal practice with approximately 5,500 people, including some 550 partners, working in more than 40 offices worldwide. The firm shares deep-seated local knowledge and networks, a spirit of collaboration and the drive to exceed client expectations. The office in Amsterdam includes over 330 staff and 34 partners, and offers legal advice to clients in almost every sector, including large and mid-sized companies, financial institutions and government organisations. Clients benefit from the firm's global reach and scalability. It is a universally recognised market leader in corporate transactions, banking and capital markets, governance and regulatory, and disputes.

Overview: Shift in Dutch Approach to Tax

During the years following the credit crunch of 2008, the focus of the Dutch government and Dutch tax authorities (DTA) has generally shifted from preserving and promoting the Dutch fiscal climate towards a more defensive approach aimed at adjusting the perception (of some) that the Netherlands acts as a tax haven. In several legislative proposals, the government has voiced the need to prevent taxpayers using the Netherlands as a gateway jurisdiction to facilitate the channelling of taxable income to lower-tax jurisdictions.

As part of this shift, the Netherlands adopted a proactive approach towards international initiatives aimed at combating tax abuse. Since the start of the OECD/G20 base erosion and profit shifting (BEPS) project in 2013, which aims to put an end to tax avoidance strategies that exploit gaps and mismatches in tax rules to avoid paying tax, the Netherlands has adopted 35 measures to combat tax abuse or to improve the information position of tax authorities.

The proactive and compliant approach adopted by the Netherlands resulted in more reliance on a substance over form approach. There has been an increased use of open norms in legislation, such as the requirement that transactions are not "artificial" (kunstmatig) and a more economical approach to substance. Moreover, even if a taxpayer demonstrates its compliance with legal requirements (eg, substance), the possibilities for the DTA to provide evidence to the contrary have increased.

Also, in other areas, there is a clear lack of guidance on the scope of the law. A good example is the requirement in the European Union (EU) to mandatorily disclose certain cross-border transactions. Another policy change that leads to legal uncertainty is the decrease in the possibilities to discuss tax matters with the DTA ahead of taking a formal position (by filing a tax return).

Statistics show that the number of tax court cases have remained stagnant over the past years. The DTA recently identified combating tax abuse or fraud (including money laundering) as one of its top five priorities and made available additional funding towards this effort. Recent case law shows that the DTA targets specific types of abuse and is increasingly targeting the alleged facilitators of tax abuse.

A possible explanation of the DTA's shortage in resources, mainly in terms of workforce, is the unexpected popularity of a voluntary redundancy plan that led to a rejuvenation and (at least temporary) decrease of the DTA's workforce. Recent statistics further illustrate that the DTA needs to prioritise its focus areas, as it only audited 7.6% of large corporations and 2.5% of SMEs in 2019.

This shift in fiscal policy by the Netherlands has placed an increased burden on Dutch tax subjects to independently assess and clearly document their obligations under Dutch tax law. What adds to the complexity is that public perception, the media and non-profit organisations hold large corporations to a higher moral standard of conduct than the Dutch tax law does.

Specific Trends – Notable Developments

Reporting obligations pursuant to adoption of DAC6

Since the credit crunch, automatic exchange of information has increased significantly in the EU. This is reflected in the various amendments of the 2011 EU Directive on Administrative Cooperation (DAC). The latest amendment, which is referred to as DAC6, introduces new reporting obligations. These apply to EU intermediaries (including banks, accounting firms, tax advisers, corporate service providers and certain other persons) involved in cross-border and potentially aggressive tax arrangements subject to certain characteristics or features (called “hallmarks”) that are listed in the annex to DAC6.

DAC6 imposes the obligation on all intermediaries involved in the design, marketing or implementation of arrangements that include one of the hallmarks to file a report on the relevant transaction with their local tax authorities. In the absence of intermediaries required to make a filing (eg, where the intermediaries are non-EU intermediaries or benefit from legal professional privilege), the taxpayer has to disclose the arrangement to the DTA.

Although the disclosure requirement will not formally apply until 1 July 2020, it covers information on reportable cross-border arrangements of which the implementation of the first step took place between 25 June 2018 and 1 July 2020. The filing should take place before August 2020 and the first automatic exchange of information between member states will take place as of 31 October 2020. The authors note that pleas have been made to postpone the 1 July 2020 date in the context of COVID-19, but no formal response has been published by the European Commission in this respect at the date of finalising this chapter.

There is a lack of guidance on the scope of the disclosure obligations, mainly concerning the scope of the hallmarks. As this is an EU directive (that legally binds EU member states), the Dutch government needs to ensure that the implementation in Dutch law does not narrow the intended scope of the directive. One notable Dutch-specific rule is that information disclosed under DAC6 does not prevent the DTA from imposing an additional tax assessment on the taxpayer. An additional tax assessment under Dutch tax law is a "second" assessment imposed if the DTA disagrees with the taxpayer's self-assessment or with its own assessment because new facts (nieuw feit) are discovered or the taxpayer acted in bad faith.

Generally, a Dutch taxpayer should be able to rely on an assessment imposed by the government and a "new fact" is required to impose an additional tax assessment. Information disclosed to the DTA is not considered to be disclosed in the sense that if such information is later discovered by the DTA (eg, during a tax audit), this still qualifies as a new fact for Dutch tax purposes.

The general expectation is that intermediaries and taxpayers will take a cautious approach to DAC6 by broadly interpreting the hallmarks and disclosing transactions if in doubt. DAC6 will improve the information position of the DTA and other EU tax authorities, especially in combination with the automatic exchange of information among EU tax authorities. However, time will tell how difficult it will be for the DTA to filter out the relevant information considering the expected abundance of disclosures.

Changes to horizontal monitoring and tax ruling policy

There is a noticeable change in the position of the government to allow the DTA to engage in a conversation with the taxpayer to discuss tax matters informally. Because of this change in policy, the DTA has made changes to the regime of horizontal monitoring (horizontaal toezicht) as of 2020, a supervision mechanism based on mutual trust between the taxpayer and DTA. Another development is that stricter conditions apply to conclude an international tax ruling and that the DTA publishes an anonymised summary of rulings.

As part of horizontal monitoring, the DTA and taxpayer entered into a covenant specifying the responsibilities of each party, the options available to enforce the law and specifying any mutual agreements. The aim was to shift towards a more equal relationship as part of which the taxpayer was transparent about its tax strategy and relevant tax issues and the DTA was transparent as to the background to questions and the implementation of its supervision. For the 100 largest and most complex Dutch enterprises, the DTA will replace horizontal monitoring with individual and tailored supervision plans to which the DTA will allocate more expertise and a larger workforce. Large entities outside this group can still enter into a covenant with the DTA, but the DTA will increase its supervision, for example, by putting stricter demands on internal control measures and by performing checks that are more frequent. Furthermore, these covenants will only have a term of three years. Taxpayers outside the group of large entities will no longer be able to enter into an individual covenant with the DTA and the DTA will terminate existing covenants. An entity needs to meet at least two of the following three criteria to qualify as a large corporation:

  • a net turnover that exceeds EUR40 million;
  • more than EUR20 million in total assets; and
  • more than 250 employees (on average).

Changes to tax ruling policy

A new requirement in the context of international rulings is that the group as a whole and the relevant Dutch entity have sufficient Dutch economic nexus and that the DTA is of the view that tax motives are not the main driver behind the transaction. Dutch economic nexus requires that:

  • the Dutch tax entity requesting the ruling is part of an internationally operating group engaged in a trade or business in the Netherlands;
  • the Dutch entity is engaged in a trade or business activity in the Netherlands; and
  • it has a sufficient number of relevant employees.

The decreased possibilities to obtain certainty on the DTA's position or at least to discuss the taxpayer's tax view ahead of taking a formal position is likely to increase the number of discussions and proceedings with the DTA. This development increases the importance of transparency towards the DTA. This change in policy should not deter taxpayers from striving to obtain the DTA's views on structures that potentially may be seen as aggressive ahead of taking a formal position. In a Dutch tax context, the benefit of entering into such a conversation is emphasised by the fact that tax returns (through which a taxpayer takes a formal position) do not allow the taxpayer to include their reasoning behind the position taken.

Discussing your tax position with the DTA may mitigate the risk of being confronted with penalties or even criminal liabilities if you (unintentionally) get it wrong. The fact that the taxpayer reached out to discuss its position with the DTA should illustrate its intention to act in compliance with the law. However, please note that any misrepresentations can result in criminal liability for the persons involved (see section "Increased risk of criminal liability; focus on facilitators").

In the Netherlands, the law generally takes precedence and a taxpayer bears the risk of erroneous information, but under certain circumstances the legitimate expectation (gerechtvaardigd vertrouwen) derived from communications with the DTA can overrule the law (ie, contra legem). This requires that the law infringement was not manifest (that would bar the legitimacy of the expectation), that the taxpayer acted based upon its expectations and would suffer damages if the law is not overruled.

Considering the increase of open norms and current legal uncertainty in certain areas, there is less room to take the view that an infringement of law was manifest. If the DTA takes a position on a specific matter, then this might increase the possibility to take the position successfully that the DTA raised legitimate expectations.

Substance no longer an absolute safe harbour

The increase in the use of open norms, particularly in the context of tax abuse, has increased the emphasis on substance. For example, the application of an exemption for Dutch dividend withholding tax (dividendbelasting) purposes or several anti-abuse provisions in the Dutch corporate income tax act (Wet op de vennootschapsbelasting 1969) (eg, the Dutch controlled foreign interest (CFC) and foreign substantial interest rule) have been made dependent on substance requirements.

In the past, taxpayers could rely on an exhaustive list of substance requirements for the criterion that the transaction was not abusive and without valid business reasons. This list required, for example, that at least half of the statutory and decision-making directors of a Dutch entity are Dutch residents and have the required professional knowledge to perform their duties adequately. However, following the Court of Justice of the European Union (CJEU) ruling on six Danish beneficial owner cases (dated 26 February 2019), the Dutch government adopted legislation (in force as of 1 January 2020) that provides the DTA with the opportunity to demonstrate that the structure is abusive and lacking valid business reasons notwithstanding the fact that the substance requirements are met. This possibility means that a taxpayer that meets all substance requirements can no longer ascertain that it meets the test without confirmation from the DTA. This, again, decreases legal certainty. The authors note that based on Deister Juhler (with reference C-504/16 and C-613/16), Dutch law already provided a right to provide counterevidence to the taxpayer in case the substance criteria are not met.

For completeness' sake, the authors add that tax rulings remain valid unless the DTA explicitly informs the taxpayer otherwise. The Dutch government issued this statement as rulings typically contain a clause that the ruling becomes void following a recent change in legislation.

Impact of MLI ratification

The ratification of the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI) by the Netherlands on 16 March 2019 may provoke the DTA to challenge tax-abusive structures that currently rely on tax treaty benefits. Currently, tax benefits granted to taxpayers under a tax treaty trump domestic (anti-abuse) provisions, but this may no longer be the case following the introduction of the MLI. The MLI allows for the immediate change of existing tax treaties in place between signatories to the MLI (eliminating the need to renegotiate) and introduces BEPS (see further "Overview: Shift in Dutch Approach to Tax") related measures to tax treaties. Most notable in the context of tax controversy are changes to the preamble of tax treaties and the introduction of a principal purpose test (PPT). The PPT is a general anti-abuse rule addressing cases of treaty abuse, such as treaty-shopping situations. If one of the principal purposes of transactions or arrangements is to obtain treaty benefits (eg, a lower withholding tax), these benefits are denied unless it is established that granting these benefits would be in accordance with the object and purpose of the provisions of the treaty. Preambles to tax treaties describe the object and purpose of the treaty and the MLI will cause the inclusion of combating tax avoidance and tax evasion as objects of the treaty in the preamble of covered tax agreements.

The Dutch government has clarified that domestic anti-abuse provisions will be aligned with European anti-abuse provisions and CJEU case law (defined above). As a result, the authors expect that the application of the MLI results in increased tax litigation in situations that trigger domestic anti-abuse provisions, but wherein taxpayers are protected by the benefits of a tax treaty. There is very little guidance on the application of the PPT and the authors expect that signatories will interpret the PPT differently (especially in a non-EU context). Like many other developments, the introduction of this open norm decreases legal certainty for taxpayers. The authors expect that the MLI will increase the importance of substance; taxpayers will increasingly be required to argue that its substance is befitting of economic presence in a jurisdiction.

Focus on intra-group financing

The DTA has successfully litigated several cases in which it denied the deduction of intra-group interest costs because the transaction or series of transactions qualified as abusive following the application of the Dutch anti-avoidance rule fraus legis. Under this doctrine, certain transactions or parts of transactions can be disregarded if tax avoidance was the main objective of (parts of) these transactions and without application of fraus legis the outcome for tax purposes would violate the objective and spirit of the tax.

A common feature of this case law is that it concerns intra-group financing that resulted in deduction of interest costs against the Dutch corporate tax base (ie, base erosion) whilst the interest income was not taxed (to the same degree) at the level of the foreign beneficiary. The Dutch courts ruled that debt funding acquired from a related entity is non-deductible if the taxpayer bases the decision to grant this funding or the structuring of this funding on tax motives without valid business reasons. That the funding was utilised to finance the acquisition of a company from a third party or could ultimately be traced back to third-party debt did not change this.

Debate is possible whether – and if so, to what extent – these rulings are at odds with long-standing case law that a tax subject can freely determine how it wishes to finance itself. This also considering that in 2016, the Dutch Supreme Court (Hoge Raad) (with reference: ECLI:NL:HR:2016:1350) argued that tax motives can play a role in this decision. This debate will continue, at least until the Dutch Supreme Court presents its views on the last court ruling provided by the Higher Court of Amsterdam (Gerechtshof Amsterdam) (with reference: ECLI:NL:GHAMS:2019:1504).

In any event, this recent case law illustrates the importance of documenting clearly what business motives are present for attracting intra-group debt at the level of Dutch entities. Another recent Supreme Court ruling (with reference: ECLI:NL:HR:2015:1460) shows that the structuring of financing is not reviewed as a whole, but that unnecessary elements of financing, that otherwise has a clear business function, can also be targeted by fraus legis.

Increased risk of criminal liability; focus on facilitators

The DTA has publicly stated its intention to increase its efforts to hold parties that evade tax and the facilitators of that tax evasion (criminally) liable. This is a relatively new trend. For some time now, the DTA has adopted a strategy that it would impose penalties together with additional tax assessments in cases of alleged tax abuse. In the context of large corporate entities, the DTA typically imposes penalties (equal to a percentage of the tax liability) on the legal entity.

With the stated intention to penalise the facilitators, it is thought that the DTA refers to the tax advisers and the (de facto) management of the entities concerned. At least, we have seen that the DTA threatens to impose penalties or even hands over the file to the prosecutor's office (Openbaar Ministerie) if it is of the view that the transaction is abusive and the tax adviser or the representatives of the taxpayers (ie, the legal entity) misrepresented those facts. In such a situation, facilitators are likely to face criminal liability due to forgery of documents, tax fraud or money laundering.

Ahead of the Game: Taking a Pro-active Approach

The increased attention towards combating tax abuse and the decrease in legal certainty require diligent taxpayers to take a more proactive approach towards their tax policy. Taxpayers can get ahead of the game by putting in place a tax control framework or by taking it a step further and preparing or even publishing a tax policy paper. This is a growing trend and one particularly embraced by tax subjects that directly sell their goods or services to consumers.

Generally, the benefit of preparing or publishing a tax policy paper is that it forces the taxpayer to ensure its compliance with all the relevant tax provisions, identify areas of risk, and determine its risk appetite for now and the foreseeable future. Taxation is subject to frequent changes in law, and transactions that are in accordance with the law can still face scrutiny from the public, which can hold taxpayers to a higher moral standard than the law. Having a well thought out tax policy in place minimises the chance of being put on the back foot in a tax discussion.

Allen & Overy LLP

Apollolaan 15
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+31 20 674 1000

Friso.vanOrden@AllenOvery.com / Godfried.Kinnegim@AllenOvery.com www.allenovery.com
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Stibbe handles complex legal challenges both locally and cross-border from its main offices in Amsterdam, Brussels and Luxembourg, together with its branch offices in Dubai, London and New York. By understanding the commercial objectives of clients, their position in the market and their sector or industry, Stibbe can render suitable and effective advice. From an international perspective, it works closely with other top-tier firms on cross-border matters in various jurisdictions. These relationships are non-exclusive, enabling Stibbe to assemble tailor-made integrated teams of lawyers with the best expertise and contacts for each specific project. This guarantees efficient co-ordination on cross-border transactions throughout a multitude of legal areas, irrespective of their nature or complexity.

Trends and Development

Authors



Allen & Overy LLP is an international legal practice with approximately 5,500 people, including some 550 partners, working in more than 40 offices worldwide. The firm shares deep-seated local knowledge and networks, a spirit of collaboration and the drive to exceed client expectations. The office in Amsterdam includes over 330 staff and 34 partners, and offers legal advice to clients in almost every sector, including large and mid-sized companies, financial institutions and government organisations. Clients benefit from the firm's global reach and scalability. It is a universally recognised market leader in corporate transactions, banking and capital markets, governance and regulatory, and disputes.

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