Dutch Government Issues A Decree On New Ruling Practice

; posted on
April 25th, 2019

The Secretary of State for Finance published a proposed Decree on the new Dutch international ruling practice. The decree contains guideline on the procedure for obtaining rulings, the content as well as transparency considerations.

New ruling policy

Pursuant to the decree, as from 1 July 2019, it will no longer be possible to conclude international rulings if the following conditions are met:

  • The decisive aim in requesting the ruling is to avoid Dutch or foreign tax.
  • The companies requesting the ruling are based in low tax countries (listed jurisdictions with a (statutory) corporate income tax rate below 9%) or which are on the European Union’s blacklist.
  • The company does not have sufficient economic nexus in the Netherlands. The economic nexus satisfies if the company is employing enough people in relation to its overall size or its activities in the Netherlands, the Dutch entity conduct operational activities for its own account and risk, the activities performed by the Dutch entity in line with the function of the Dutch entity within the Group, and in relation to its operational activities, the Dutch entity incur an appropriate amount of operational costs.

The maximum term for new rulings will be five years, although the term may be extended to 10 years in exceptional circumstances, with an intermediate reassessment after the initial five years (currently, rulings typically are granted for 10 years).

Procedure

The process of issuing rulings by the Dutch tax authorities will become more transparent and less ambiguous. All rulings with an international character that are applied for will from now on in any case also be assessed by one central team, the new International Tax Certainty Executive (College Internationale Fiscale Zekerheid). Currently, a central team approach with a ‘second signatory’ is only used for certain types of rulings (Advance Pricing Agreements, APAs and/or Advance Tax Rulings, ATRs).

The Decree does not contain any guidance on the term within which the process of concluding a ruling should take place. It also does not contain any guidance on the possibility to appeal against a decision of the tax authorities to not conclude a ruling in a given case.

The new policy will become effective per 1 July 2019. The Decree does not say anything on existing rulings. As the Decree is only a change of policy and not a change of law, existing rulings should remain valid and should not be affected by the Decree.

Transparent

The decree considers publishing the summary of all international rulings, including ruling requests that are denied to clarify why in these cases no ruling was concluded. The summary will include a description of the relevant facts and main conclusions from transfer pricing reports (if relevant). These summaries will be anonymized.

Source: Dutch Government

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