Whether
or not a company is deemed resident for tax purposes
has important fiscal consequences. A company is resident
in Holland if either:
Incorporation:
The company was incorporated in Holland.
Central Management & Control:
The company was not incorporated in Holland but central
management and control is effected from the Netherlands.
A
company which is incorporated in Holland is always tax
resident in Holland irrespective of whether or not it
migrates to a foreign jurisdiction. A company incorporated
in a foreign jurisdiction which migrated to Holland
but which subsequently re-domiciles to a foreign country
can lose its Dutch tax residential status so long as
central management and control is no longer exercised
from Holland.
Non-resident
companies are only assessed on certain sources of income
arising in Holland. They are not assessed on the following
sources of Dutch income:
The
Profitable Sale of Shares in a Dutch Registered Company:
Any capital gains realized by a non-resident corporation
on the disposal of its shareholding in a Dutch registered
corporation is free of tax unless the non resident
company has a "substantial interest" in
the Dutch registered corporation. A non-resident corporation
is deemed to have a "substantial interest"
in a Dutch registered company if for a period of 5
years prior to the disposal, its shareholding exceeds
33% of the nominal issued share capital of the Dutch
registered corporation.
Dividend
Income from Shares in a Dutch Registered Company:
any dividend income received by a non-resident corporation
through its shareholding in a Dutch registered corporation
are free of an assessment to corporate income tax
unless the non resident company has a "substantial
interest" in the Dutch registered corporation.
A non-resident corporation is deemed to have a "substantial
interest" in a Dutch registered company if for
a period of 5 years prior to the disposal, its shareholding
exceeds 33% of the nominal issued share capital of
the Dutch registered corporation.(N.B. Dividends paid
to a non-resident company are subject to a standard
withholding tax rate of 15% which rate may be considerably
reduced where the non resident corporation is resident
in a jurisdiction with which Holland has a double
taxation treaty).
Sale of Dutch Real Estate at a Profit:
the non-resident corporation is not subject to any
capital gains assessment on the sale of Dutch real
estate provided the non- resident corporation does
not trade in Holland through a permanent establishment
or branch. (N.B. Rental income from Dutch real estate
owned by a non-resident corporation is subject to
tax in Holland).
Interest Repayments on Loan Secured on Dutch Real
Estate: Loan
interest repayments to a non-resident corporation
on a mortgage secured on Dutch real estate are free
of corporate income tax in the Netherlands. Furthermore
there are no withholding taxes in Holland on loan
interest payments.
Administrative
or Liaison Office: Whilst the income of a non-resident
company permanent establishment or branch in Holland
is taxable the activities of an administrative or
liaison office which does not trade in the country
but simply provides information or administrative
services are not.
Corporation
Tax Rate: Presenting the last budget prior to
the election on November 22, 2006, Holland's then
Finance Minister Gerrit Zalm stated that the government
would continue to cut the rate of corporate income
tax, which fell to 25.5% in 2007 from 29.1%. This
represents a 5% cut in corporate tax since 2005. The
25.5% rate applies to income exceeding EUR200,000.
There is a 20% rate on income up to EUR40,000 and
a 23.5% rate on income above EUR40,000 and below EUR200,000.
(In 2008 the government proposed that the lowest corporate
tax rate of 20% will apply to the first EUR250,000
of profit, and the standard 25.5% rate on the excess).
In
anticipation of confirmation of the Marks & Spencer
ruling on cross-border loss relief by the European Court
of Justice, the government proposed to allow relief
for losses incurred in other EU Member States. In addition,
participation rules would be relaxed by eliminating
the nonportfolio and "subject to tax" requirements.
For "passive" participations, a "sufficient" tax rate
test (possibly 10%) would be introduced.
Ruling
in December 2005, the ECJ stated that companies could
offset losses incurred by foreign subsidiaries as long
as there was no "real possibility" that these
could be absorbed at the local level at the time the
claim was made.
According
to the ruling, M&S could therefore claim tax relief
for losses outside its home market, with the proviso
that loss-making subsidiaries were unable to claim tax
relief in their country of establishment.
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