Budget Day Special

8 October 2020

Traditionally, the Dutch Ministry of Finance presents its budget, including its tax plans ("Tax Plan") for the coming year, on the third Tuesday of September, Budget Day (Prinsjesdag). Our News Update of 15 September, already outlined the key aspects of the main proposals for you. On 5 October the Dutch Ministry of Finance issued a memorandum of amendment in which some additional legislative amendments are proposed, in particular in relation to the use of tax losses. The various bills, including those included in the memorandum of amendment, must be approved by the Dutch Parliament and may be amended during the legislative process. If approved, most of these bills will enter into effect on 1 January 2021 and may considerably impact existing legislation and taxpayers. In this Tax Plan 2021 News Update (part 2) we will provide you with a detailed explanation of the various proposals.

Corporate income tax

1. Corporate income tax rate will not be reduced
On last year's Budget Day, the government proposed reducing the corporate income tax ("CIT") rate to 21.7% on 1 January 2021. Due to the economic impact of COVID-19, the government is now proposing maintaining the 25% CIT rate. The lower bracket CIT rate will still be reduced from 16.5% to 15%. The lower rate currently applies to taxable income up to EUR 200,000 but this will be increased to EUR 245,000 in 2021 and EUR 395,000 in 2022.

2. Effective Innovation Box tax rate will increase to 9%
As already announced in last year's Tax Plan, the special CIT rate that applies to certain categories of royalty income (the 'Innovation Box' regime) will increase from 7% to 9% on 1 January 2021.

3. New legislation on applying the ATAD 2 hybrid mismatch rules and the earnings stripping rule
The Tax Plan contains legislation that aims to solve a specific technical problem with the interaction of the following anti-abuse rules targeting interest payments:

• The anti-hybrid mismatch rules, which – amongst others – prevent taxpayers from deducting interest and/or including interest in the taxable base if there is a hybrid mismatch ("Hybrid Rule");
• A rule limiting interest deduction to 30% of the taxpayer's (fiscal) EBITDA in a given year ("EBITDA Rule"); and
• A rule limiting banks and insurance companies from deducting interest based on their equity ratio ("Bank Equity Rule").

Under the current law, interest deduction can only be prevented once under a specific anti-abuse rule. Therefore, the EBITDA Rule and Bank Equity Rule do not apply if an interest payment is (already) targeted by the Hybrid Rule. However, this methodology had a problem.

The Hybrid Rule – amongst others – applies to payments made to and by hybrid entities, to the extent that these payments, due to the involvement of a hybrid entity, result in a deduction without inclusion of such payments in a taxable base. In this case, the deduction of these payments for tax purposes is either disallowed or limited. Furthermore, payments received in relation to a hybrid mismatch may no longer be exempt from CIT (e.g. the participation exemption may not apply) if that payment is deductible in the source state. However, if the hybrid entity's other income is subject to double taxation in multiple states ("Double Taxed Income"), this Double Taxed Income can be deducted from the interest that was initially targeted by the Hybrid Rule. Double Taxed Income realised in subsequent years can also be offset against interest payments targeted by the Hybrid Rule in prior years (i.e. carrying back the Double Taxed Income). This theoretically results in a balanced application of the Hybrid Rule, as interest payments are only targeted if a benefit is ultimately realised, which is not the case if the hybrid entity also realises Double Taxed Income.

However, if a deduction is granted for Double Taxed Income under the Hybrid Rule, part of the interest payment is ultimately not targeted by the Hybrid Rule. As a result, this interest can subsequently be targeted by the EBITDA Rule and the Equity Rule. Although this works well in theory, specific problems arose when the Hybrid Rule targeted interest payments and other payments in a hybrid structure. In these cases, Double Taxed Income would be deducted from both the interest payments and the other payments, without a clear allocation. This resulted in an unclear application of the EBITDA Rule and Equity Rule, as it was unclear to what extent an interest payment had been targeted by the Hybrid Rule.

The new bill fixes this issue by indicating that Double Taxed Income is deducted from interest payments and other payments under the Hybrid Rule on a pro-rata basis. Furthermore, Double Taxed Income that is 'carried back' under the Hybrid Rule is also deducted against interest payments and other payments on a pro-rata basis. As a result, the bill clarifies which interest payments are ultimately targeted by the Hybrid Rule and which interest payments have not (yet) been targeted. The latter interest payments can subsequently be targeted by the EBITDA Rule and Bank Equity Rule. This can be explained using the following example:

Dutch BV is owned by X Ltd. BV is considered non-tax transparent in the Netherlands but tax transparent in jurisdiction X. BV is therefore considered a hybrid entity. In year 1, BV pays EUR 200 interest and EUR 100 royalties to Ltd, and realises EUR 150 income from third parties. The Netherlands recognises the interest and royalty payments and in principle allows deduction of these payments from the Dutch taxable base. However, jurisdiction X does not recognise the interest and royalty payments and therefore does not include these payments in the jurisdiction X taxable base. However, both the Netherlands and jurisdiction X recognise the EUR 150 income of BV and subject this income to CIT in each country.

In this example, the Hybrid Rule would in principle limit the deduction of the EUR 200 interest and EUR 100 royalty payments as these are tax-deductible in the Netherlands but not included in the jurisdiction X taxable base. However, as BV also realised EUR 150 of Double Taxed Income, the Hybrid Rule only applies for EUR 150. Under the new pro-rata allocation rules, the Hybrid Rule applies for (200/300)*150 = EUR 100 to the interest and (100/300)*150 = EUR 50 to the royalty. Therefore, (200-100) = EUR 100 of the interest payment is ultimately not targeted by the Hybrid Rule. As a result, the EBITDA Rule or Bank Equity Rule or both can target this remaining EUR 100 interest and (possibly) further prevent its deduction for Dutch tax purposes.

4. Negative interest and positive currency exchange results no longer exempt from tax under the anti-base erosion rules
The Tax Plan amends the Dutch anti-base erosion rules as provided in article 10a of the Dutch Corporate Income Tax Act of 1969 (Wet op de vennootschapsbelasting 1969 or "CITA"). Based on article 10a CITA, interest expenses, including foreign exchange results and other costs, on related party debt are non-deductible for CIT purposes if that debt is connected with one of the following ‘tainted’ transactions (with certain exceptions):

• a dividend distribution or capital repayment by the taxpayer (or a related entity subject to Dutch CIT) to a related party;
• a capital contribution by the taxpayer (or a related entity subject to Dutch CIT) to a related entity; or
• an acquisition by the taxpayer (or a related entity subject to Dutch CIT) of a company that is a related entity after this acquisition.

Foreign exchange results also include gains, and interest expenses also include negative interest. If the foreign exchange gains or negative interest exceeds the interest costs on a related party debt, article 10a CITA effectively results in a CIT exemption, as this positive amount would be excluded from the taxable basis.

Based on the proposal, the balance of the 'tainted' interest costs, foreign exchange results and negative interest on a specific related party debt in a particular year is excluded from article 10a CITA and is therefore part of the taxpayer's taxable income for CIT purposes. If the balance is negative, article 10a CITA still applies and excludes the deduction of these costs.

5. 'Coronavirus reserve' codified for CIT purposes
Earlier in the year, the government introduced a scheme allowing taxpayers to form a 'coronavirus reserve' for CIT purposes. The coronavirus reserve allows taxpayers to already take into account some or all of their expected 2020 losses in the 2019 CIT return, provided that they are caused by the impact of COVID-19. This applies similarly to taxpayers with a financial year that is not the same as the calendar year. Under normal circumstances, such tax loss carry back would only be possible once the 2020 tax losses have been formalised and confirmed through the 2020 CIT assessment. The coronavirus reserve cannot exceed the profit realised in 2019 and will be released in the taxpayer's 2020 taxable income (in other words the 2020 taxable income will be increased with the amount of losses carried back to 2019). By forming a coronavirus reserve, a taxpayer can improve liquidity sooner than when using the regular loss setoff rules. Forming a coronavirus reserve may have consequences for applying other CIT schemes.

6. Deductibility of liquidation and cessation losses restricted
In addition to the Tax Plan, a bill to amend the deductibility of liquidation and cessation losses for CIT purposes (the ''Liquidation Loss Bill'') was filed with Parliament on Budget Day. The Liquidation Loss Bill aligns with the draft proposal that was initiated by three opposition members of Parliament in the Netherlands in October 2019. The Liquidation Loss Bill further limits deductibility of liquidation and cessation losses for the financial years starting on or after 1 January 2021.

(i) Current legislation
Under the participation exemption regime, any result – negative or positive – related to a qualifying participation (typically subsidiaries in which the Dutch taxpayer has a shareholding of at least 5%) is exempt from CIT. The liquidation and cessation loss scheme is an exception to this rule. Under the current liquidation and cessation loss scheme, taxpayers can – subject to certain conditions – offset qualifying liquidation and cessation losses.

(ii) Proposed legislation
The Liquidation Loss Bill limits the scope of the liquidation and cessation scheme by introducing a threshold of EUR 5 million and three additional conditions: the temporal, quantitative and territorial conditions. These are explained below.

• Temporal condition: A liquidation should be completed no later than in the third calendar year following the year in which the subsidiary ceases its activities, unless there are sufficient sound business reasons for the delay. This condition aims to limit tax planning around lengthy liquidation processes.
• Quantitative condition: A liquidation loss can only be taken into account if the Dutch taxpayer owns a controlling interest in the subsidiary, which is typically the case if the taxpayer holds at least 50% of the (statutory) voting rights.
• Territorial condition: A liquidation loss will only be eligible for deduction to the extent that it is attributable to a subsidiary or permanent establishment that is established in the Netherlands, an EU/EEA Member State or a state with which the EU has a specific association agreement.

Introducing a temporal condition and a threshold means that the liquidation and cessation loss scheme will initially be limited to EUR 5 million and situations where the liquidation of the subsidiary is completed within three years after the start of the liquidation. A liquidation or cessation loss of more than EUR 5 million may only be taken into account if the other two conditions (i.e. the territorial condition and the quantitative condition) are met over a period of 5 years preceding the completion of the liquidation.

For third states (i.e. states that do not meet the territorial condition), it is possible to take into account a cessation loss in excess of EUR 5 million for two types of investments:

• immovable property located in a third state that is held as an investment;
• a joint entitlement in the assets of a business operating in a third state that is held as an investment.

(iii) Anti-abuse
The Liquidation Loss Bill also includes an anti-abuse provision targeting non-qualifying participations that are held through qualifying intermediate holding companies. Under this 'look through' provision, it should be considered whether the liquidation or cessation loss could have been taken into account had the participation been held by the taxpayer directly. Without this look through provision the territorial and quantitative conditions could easily be circumvented.

(iv) Transitional law
The Liquidation Loss Bill includes a transitional provision in relation to the temporal condition. Liquidations and cessations decided before 1 January 2021 still may be taken into account if the liquidations and cessations are completed before 31 December 2023. Moreover, if there are sufficient sound business reasons, the liquidation process may take longer.

7. Tax loss carry forward restrictions are abolished but a cap on tax loss utilisation is introduced
The Dutch government proposes to abolish the applicable timing restrictions in relation to the use of tax losses. Under current legislation tax losses can be carried forward over a period of six years. Subject to approval by Parliament, this restriction will now be abolished as from 1 January 2022. Any tax losses available ultimo 2021 will also benefit from this proposal.

At the same time, the government proposes to introduce new restrictions as to the amount of losses that can be taken into account by a taxpayer. According to the proposal, tax losses can be fully offset against profits up to an amount of EUR 1 million, whereas such tax losses can only be offset against 50% of the taxpayer's profits exceeding that amount. This restriction applies to both the situation in which tax losses are offset against the taxable income of the previous year (carry back) as well as the taxable income of future years (carry forward). The new rules should apply as from 1 January 2022.

This proposal is in line with the suggestions made by an advisory committee to the Dutch government that assessed future taxation of MNEs.

Wage and income tax

8. Changes to the income tax rates and allowances for Box 1, 2 and 3
The government proposes amending the applicable tax rates and allowances for Box 1, 2 and 3 from 1 January 2021 onwards as follows:

• Box 1 (business and employment income)
The applicable income tax rate for Box 1, which includes business and employment income, will be reduced to 37.10% for income up to EUR 68,507 and 49.5% for income exceeding EUR 68,507.


• Box 2 (dividends and capital gains on a substantial interest)
The applicable income tax rate for Box 2, which includes dividends and capital gains realised on a substantial interest (typically shareholdings of at least 5%), will be increased from 26.25% to 26.9%.


• Box 3 (savings and portfolio investments)
Box 3 includes savings and portfolio investment income. Rather than taxing the actual return realised by a taxpayer, a deemed return on Box 3 investments is taken into account. These deemed returns have been criticised for being unreasonably high (and not in line with market developments). Therefore, the government has assessed whether a swift taxation of actual returns would be feasible. Despite earlier announcements that this would be achievable, the government had already indicated that this change would not be part of the 2021 Tax Plan. Instead, the government proposes increasing the tax-free allowance for Box 3 income to EUR 50,000 (currently EUR 30,846) for individual taxpayers and EUR 100,000 (currently EUR 61,692) for tax partners. The applicable tax rate for Box 3 income will increase from 30% to 31% on 1 January 2021.

9. Work-Related Costs Scheme temporarily increased
Earlier this year, the government announced that it would temporarily increase the amount of tax-free reimbursements that an employer can provide its employees under the Work-Related Costs Scheme (werkkostenregeling). This allowance was increased to 3% (instead of 1.7%) of the employer's total payroll expenses up to EUR 400,000 and 1.2% of the total payroll expenses exceeding that amount. This increased allowance is now codified. The allowance for the total payroll expenses exceeding EUR 400,000 will decrease from 1.2% to 1.18% as from 2021.

10. 'Reimbursement for entrepreneurs in Affected Sectors' (TOGS) will be tax exempt
As part of the COVID-19 support arrangement that was implemented by the government earlier this year, certain categories of entrepreneurs qualified for financial compensation under the 'Reimbursement for entrepreneurs in Affected Sectors' arrangement (Beleidsregel Tegemoetkoming ondernemers getroffen sectoren). These reimbursements will be exempt from tax based on the bill in the Tax Plan (which is a codification of the foregoing decree).

Real estate transfer tax

11. Real estate transfer tax rate increased with an exemption for first-time buyers
Dutch housing prices have increased in recent years, which has made it difficult for many young people to buy houses. The Dutch government will help first-time home buyers by applying rate differentiation measures to the Dutch real estate transfer tax ("RETT") as of 2021.

The RETT rate will increase from 6% to 8% in 2021. The lower 2% RETT rate will only apply to residential properties acquired by individuals to use as their long-term principal residence. In addition, a once-only full RETT exemption will be available for individuals aged between 18 and 35 who buy residential properties as a long-term principal residence and have not yet used the RETT exemption. Residential properties that will be rented out will be subject to the general 8% RETT rate. Furthermore, other categories of real estate and all real estate acquired by legal entities will be subject to the general 8% RETT rate.

In order to apply the 2% RETT rate or the full RETT exemption, individuals must declare that the property will be their long-term principal residence. In addition, buyers between 18 and 35 that want to apply the full RETT exemption must declare that they have not yet used the RETT exemption. The declarations will be filed with the Dutch tax authorities. The Dutch tax authorities will assess whether buyers are entitled to the 2% rate or the full exemption after approximately 12 months. If the Dutch tax authorities determine afterwards that, contrary to the declaration, the property was not used as the long-term principal residence or the exemption had already been used by the buyer, an additional tax assessment will be imposed at a RETT rate of 8% or 2% respectively. Buyers will have the opportunity to (i) demonstrate that their property is their long-term principal residence and (ii) object to the additional tax assessment if necessary. Unforeseen circumstances that buyers could not have been aware of at the moment that the declaration was filed will not result in the Dutch tax authorities imposing an additional tax assessment.

As of 2021, all real estate acquired by legal entities will be subject to the general 8% RETT rate.

We have set out the RETT rate differentiation measures in the table below:

Buyer	Residential real estate	Other real estate
Individuals aged between 18 and 35, buying a property to serve as their long-term principal residence who did not apply the exemption before	Full RETT exemption	8%
Individuals older than 35 or that already applied the full RETT exemption, buying a property to serve as their long-term principal residence	2%	8%
Individuals buying a property to let or otherwise not to serve as their long-term principal residence	8%	8%
Individuals buying non-residential real estate	N/A	8%
Legal entities buying real estate	8%	8%

Environmental taxes

12. CO2 levy introduced
The Industry Carbon Tax Act will be introduced on 1 January 2021 to levy industrial production and waste incineration. This national CO2 levy is being introduced to reach the CO2 emission reduction targets the Dutch government committed to in the Paris Agreement. The levy is meant as an additional pricing mechanism of CO2 alongside the European Emission Trading System (EU ETS). This levy is expected to apply to approximately 235 companies.

The CO2 levy will have an increasing price path. For 2021, the statutory rate is set at EUR 30 per ton of CO2. This rate will increase by EUR 10.56 per year, resulting in EUR 125 per ton CO2 in 2030. However, this statutory rate is not the levy that should be paid per ton of CO2. The levy is calculated by deducting the EU ETS price from the statutory rate. If the EU ETS price is higher than the applicable CO2 rate in that year, no CO2 tax is levied. The taxpayer can then file a nil tax return.

Emissions that are deemed efficient compared to the ETS benchmark, as well as some inefficient emissions, are exempt. Emissions are exempted based on dispensation rights. These are allocated under the taxable entities and will decrease annually. The low prices and high quantity of dispensation rights in the initial years of the levy are meant to give taxpayers the opportunity to reduce their emissions. Taxpayers can trade their dispensation rights with other companies.

The CO2 levy is due on an annual basis. Taxpayers must submit their industrial emissions report before 1 October of the year following the calendar year applicable in the report. The tax is levied by the Dutch Emissions Authority instead of the Dutch tax authority.

Other potential bills expected to be announced in 2021

13. Arm's length principle to be amended in case of cross-border mismatches
The Dutch government also announced that it is working on a new bill to amend the application of the arm's length principle in cross-border mismatches in informal capital structures. The details of the proposed measure are expected to be disclosed by the government in the spring of 2021.

The arm's length principle aims to ensure that parties engaged in intragroup transactions agree the same terms and conditions which non-related parties would have agreed in comparable uncontrolled transactions (article 8b CITA). This is relevant in cross-border situations. Under the current Dutch application of the arm's length principle, arm's length expenses are deductible from a taxpayer's taxable income, regardless of whether the other jurisdiction correspondingly taxes the income.

Applying the arm's length principle leads to upward or downward adjustments of the taxable profits if the profits do not correspond with the profits which would be made by a third party. A downward adjustment of the taxable profits in the Netherlands would indicate that the Dutch entity reported profits which are higher than it would be entitled to if the arm's length principle was applied, (e.g. it received a price for goods sold to a group entity which is higher than the arm's length price or it was charged an interest rate for receiving an intragroup loan which is lower than the arm's length interest rate). These excess profits are often recognised as informal capital.

A cross-border mismatch exists if the foreign jurisdiction that is involved in the cross-border intragroup transaction does not make a corresponding upward adjustment, while the Dutch taxable income is adjusted downwards. This would result in part of the profits remaining untaxed. The new bill aims to disallow the downward adjustments in these cases (i.e. when the foreign jurisdiction will not make a corresponding upward adjustment).

14. Further interest deductibility limitations may be introduced
In response to the economic impact of COVID-19, the government has announced that it will investigate whether further measures are necessary to achieve a more balanced tax treatment of equity and debt financing (i.e. disincentivising debt financing). Part of that process will be assessing the current 30% EBITDA allowance under the earnings stripping rule and whether a reduction of that allowance (to for example 25%) would be preferable. Additional measures may be introduced as part of that project.

15. New rules for offsetting dividend withholding tax against CIT
The Dutch government also announced that it envisages amending the current credit mechanism for dividend withholding tax and gambling tax. This should align Dutch tax law with the Sofina decision of the European Court of Justice.

This means that Dutch legislation will move away from the existing offsetting mechanism, which provides – in short – that entities subject to CIT in the Netherlands can fully offset dividend withholding tax and gambling tax against any CIT payable. This methodology also applies to loss-making taxpayers, since these taxpayers are entitled to a refund of the withholding taxes. This practice is not available to entities that are not subject to CIT in the Netherlands, resulting in a difference in treatment between Dutch and foreign taxpayers.

Following the limited guidance that has been provided so far, the government intends to limit the offsetting capacity of entities that are subject to CIT in the Netherlands. This will be done by providing that entities in a loss-making position are no longer entitled to a refund of dividend withholding tax and gambling tax. Instead, the government envisages carrying excess credits forward.

The new credit mechanism is expected to enter into force as per 1 January 2022. Pending the amendment of existing legislation, the Dutch legislature will issue a decree which will allow foreign taxpayers to conditionally obtain a refund of any paid withholding taxes. This decree is expected to be circulated shortly.

16. Changes to the tax treatment of stock option rights issued to employees by startups
The government is currently working on new rules for the tax treatment of stock option rights that are issued by startups to their employees. Currently, stock option rights issued to employees are treated as taxable remuneration for wage tax and income tax purposes at the moment that the stock option rights are exercised. This could lead to liquidity problems for both the startups and the employees. To help startups and scale ups attract new talent, the government intends to change this tax treatment in favour of startups, scale ups and their employees. The purpose of this measure is to shift the taxable moment from the moment that the stock options are exercised to the moment that the shares obtained by the employee can be traded.

The government's initial intention was to include a feasible proposal in this year's Tax Plan. However, ongoing discussion with various stakeholders show that the start-up and scale-up sector is too diversified to introduce such a general rule. The Dutch government, in consultation with these stakeholders, has decided to use the coming months to further develop and assess any potential solutions, which may also include an internet consultation in spring 2021.

17. Conditional withholding tax on dividends to low-tax and non-cooperative jurisdictions
A conditional withholding tax ("WHT") of 25% will apply as of 1 January 2021 on intragroup interest and royalty payments. This conditional WHT was already approved by Parliament. The government now intends to introduce a similar WHT on dividends as per 1 January 2024. To that end it currently organises an internet consultation.

The conditional WHT applies to interest and royalties that are paid, deemed paid (or accrued) by a Dutch corporate taxpayer (including both legal entities and permanent establishments) to a related entity resident in:

a) a jurisdiction with a statutory tax rate of less than 9%;
b) a jurisdiction that is included on the European Union (EU) list of non-cooperative jurisdictions;
c) other jurisdictions, if the entity allocates the interest or royalties to a permanent establishment in a jurisdiction under (a) or (b);

Please note that the WHT targets certain abusive situations, which include payments, deemed payments or accruals to hybrid entities. Upward corrections if the interest or royalty payment is not at arm’s length are also in the WHT's scope.

At the end of each year, the Dutch government publishes a limitative list of jurisdictions that qualify as low-tax jurisdictions or are included on the EU list of non-cooperative jurisdictions at that time. As of 1 January 2020, the following jurisdictions are included on the list: American Samoa, Anguilla, the Bahamas, Bahrain, Barbados, Bermuda, the British Virgin Islands, the Cayman Islands, Fiji, Guam, Guernsey, the Isle of Man, Jersey, Oman, Samoa, Trinidad and Tobago, Turkmenistan, the Turks and Caicos Islands, the United Arab Emirates, Vanuatu and the US Virgin Islands.

The WHT only applies to affiliated entities. Entities are qualified as an affiliate if:

• one entity – directly or indirectly – holds a qualifying interest in the other party. An interest is a qualifying interest when a holder of this interest can exercise control over decisions of the entity. This should be determined based on the relevant facts and circumstances. An interest representing 50% or more of the statutory voting rights will in any case qualify as a qualifying interest;
• a third entity directly or indirectly holds a qualifying interest in both entities;
• one entity, together with a cooperating group of shareholders, holds a qualifying interest in the other; or
• a cooperating group of shareholders hold a qualifying interest in both entities.

The WHT may also apply to interest and royalty payments in certain abusive situations, even if the related entity is not a resident in a listed jurisdiction. A structure or transaction is considered abusive if:

• the arrangement – or series of arrangements – is artificial; and
• the interposed company is entitled to the interest or royalties with the purpose, or one of the main purposes, to avoid Dutch WHT of another party.

If the interposed company has relevant substance in the country of residence, this provides a presumption of proof that the arrangement is not abusive. In absence of any evidence to the contrary, it is deemed abusive to interpose a hybrid entity which causes income not to be taxed in any jurisdiction.

The WHT is levied on an annual basis from the entity that makes the payment and withholds the WHT. If the WHT is not paid correctly or fully, the Dutch tax authorities can levy the WHT from the receiving entity. The WHT rate corresponds with the highest applicable CIT rate (25% in 2021).

Contact

Please contact our Houthoff Tax team if you want to discuss the impact of any of the above bills in further detail.

Please find all the bills here.