Depreciation, amortisation, and depletion
Generally, depreciation may be computed by a straight-line or a reducing-balance method or, in accordance with any other sound business practice, based on historical cost. Depreciation starts from the date the asset comes into use. Dutch tax law includes specific rules (see below) that potentially either limit or facilitate the depreciation of assets (e.g. immovable property, goodwill, and other fixed assets or environmental investments).
Limited depreciation of immovable property
There are special provisions for depreciation of immovable property. A distinction is made between immovable property held for investment purposes and buildings used in a trade or business.
Investment property cannot be depreciated to an amount lower than the official property’s fair market value for tax purposes, which is known as WOZ-waarde. In other words, a property will not be subject to depreciation unless the carrying amount of the building and the land on which it is located is higher than its value for tax purposes. This value is determined by the municipal tax authorities annually. As this value is based on the assumption that the property is free of lease, the value for tax purposes of commercial real estate may be lower than fair market value.
Until 2019, alternatively, the depreciation of buildings employed in a taxpayer’s own trade or business was only limited to 50 per cent of WOZ-waarde. As of 1 January 2019, for corporations this is also limited to 100 per cent of the WOZ-waarde. It should still be possible to value immovable property at fair market value if this is demonstrably lower than the current book value. In addition, anti-abuse measures apply to prevent the division of land and buildings into separate legal entities or to related individuals.
Note that maintenance costs continue to qualify for tax relief and any maintenance-related value increase does not lead to a compulsory upward revaluation of the property. Moreover, a property is not required to be revaluated as its value increases due to market developments.
Depreciation of land is not permitted.
The sale of depreciated assets triggers tax on the difference between the sale price and the depreciated book value unless a reinvestment reserve is set up (see Capital gains in the Income determination section).
Limited amortisation of goodwill and depreciation of fixed assets
With regard to goodwill, the amortisation for tax purposes is limited to 10 per cent of the purchase price per annum. Furthermore, the tax depreciation of other fixed assets (i.e. inventory, equipment) is limited to 20 per cent of the purchase price or production costs per annum.
The law provides accelerated depreciation of several specific assets. Accelerated depreciation applies to investments in assets that are in the interest of the protection of the environment in the Netherlands and that appear on the so-called VAMIL (Vervroegde Afschrijving Milieu-investeringen) list. The accelerated depreciation facility for investments in environment-improving assets is limited to 75 per cent of the total (investment) costs.
Accelerated depreciation is also available for certain other designated assets (e.g. investments of starting entrepreneurs).
Investment costs minus residual value of sea-vessels that are operated mainly from the Netherlands may be depreciated straight-line over five years. Instead of accelerated depreciation, these taxpayers may choose immediate taxation (see Tonnage tax regime in the Taxes on corporate income section).
Anti-abuse rules regarding interest and loans
Due to existing anti-abuse rules, the deduction for interest paid on intra-group debts relating to certain transactions is disallowed. Transactions that are in scope of these anti-abuse rules are an internal or external acquisition, a dividend payment (distribution of profit), or a capital contribution into an affiliated company (i.e. an interest in the company of at least 1/3). Interest that relates to the financing of such transactions is only deductible if the loan and the underlying transaction are based predominantly on sound business considerations (‘the double business motive test’) or if the interest received is effectively and sufficiently taxed by Dutch standards. As such, under the ‘double business motive test’, it must be substantiated that there are sound business reasons for both the loan and the transaction. When the debt ultimately is financed externally (outside the group) and a direct relationship exists between the internal debt and the ultimate external financing, it can generally be substantiated that there are sound business reasons for the loan. Interest is deemed to be effectively and sufficiently taxed if the interest is effectively subject to a taxation on profits of at least 10 per cent determined according to Dutch standards. The use of tax losses or similar relief claims by the recipient of the inter-company interest affects whether the interest is sufficiently taxed in the hands of the recipient. If the taxpayer makes a reasonable case that the interest is taxable at an effective tax rate of at least 10 per cent, the tax authorities, nevertheless, have the option to substantiate that either the liability or the corresponding transaction is not based on sound business reasons.
Furthermore, interest paid on certain profit participating loans will be qualified as a dividend and will not be tax deductible. Interest received upon these loans may meet the definitions for the participation exemption if the creditor also holds a qualifying participation in the debtor. Intra-group conduits may be denied a credit of foreign WHT with respect to royalties or interest received if no economic risk is deployed.
The Netherlands applies an earnings stripping rule. This rule limits the deduction of the on balance interest cost to 30 per cent of the taxpayer’s EBITDA, with a threshold of 1 million euro and a carry forward rule for the (part of the) interest that may not be deductible in a tax year to later tax years without time limitation.
For the application of the rules on ‘the deduction of interest on loans that are directly or indirectly granted by a group company in order to finance an acquisition or capital contribution deduction’ and on the ‘deduction of excess interest on debts that are deemed to be related to the financing of participations’, the Dutch legislator has ‘switched off’ the fiscal unity. Please note, however, that the Dutch fiscal unity has maintains its normal effect in relation to the earnings stripping rule.
Provision for bad debt
It is possible to make a provision for future expenses with a cause existing on the balance sheet date (during the financial year) of the tax year in question.
Charitable contributions are deductible if certain conditions are met. The gift must be documented in writing and contributed to a qualifying charity (ANBI or supporting foundation SBBI). The deductible amount may not exceed 50 per cent of the taxable profits, with a maximum of 100,000 euro.
Donations to a cultural organisation may be multiplied by 1.5 in respect of the corporate income tax deduction for gifts, subject to a maximum of 2,500 euro. This multiplier may be applied to a maximum of 5,000 euro for cultural gifts.
Limited deductibility of costs relating to remuneration by way of shares
Any remuneration by way of shares, profit-sharing certificates, option rights on shares, or similar rights is not deductible.
Costs related to so-called stock appreciation rights for employees that earn an income that exceeds 591,000 euro are not deductible.
Fines and penalties
Most criminal fines and penalties are not tax deductible. This applies, for instance, to fines imposed by a Dutch criminal judge, administrative fines, disciplinary fines, and penalties from a European institution.
Certain taxes, such as the tax on insurance transactions, are deductible. Tax paid on the transfer of immovable property must be included in the cost price and taken into account in the course of normal depreciation. The CIT itself is not deductible.
Other significant items
Deduction of certain expenses (e.g. costs for food, drink, and entertainment) paid by employers for employees are not deductible, in part. These costs are often referred to as mixed costs. The non-deductible portion is 0.4 per cent of the total taxable wages of all employees but never less than 4,700 euro per year. Alternatively, the employer may choose to deduct only 73.5 per cent of the actual expenses.
Net operating losses
Currently, tax losses can be carried back one year and carried forward six years (up to and including 2018, the carry forward period was nine years). This also applies to start-up losses.
Complex rules may prohibit the utilisation of net operating losses after a change of 30 per cent or more of the ultimate control in a company (anti-loss trafficking rules). Furthermore, until 31 December 2018, limitations exist on loss utilisation for holding/finance companies. Based on these rules, losses incurred by a mere holding or group finance company can be offset only against holding or finance income in preceding and following years, provided that certain strict conditions are met.
Until recently, the application of these rules did not apply to fiscal unity situations and did possibly also not apply in EU situations based on an analogue fiscal unity approach based on CJEU case law.
However, from 1 January 2022 onwards an indefinite loss carry-forward will apply. Yet, losses (both carry-forward and carry back) can only be fully deducted up to an amount of 1 million euro taxable profit. If the profit in a year exceeds 1 million euro, the losses are only deductible up to 50 per cent of the higher taxable profit minus an amount of 1 million euro. The proposed scheme also contains transitional law. For the carry-forward of losses, losses incurred in financial years that started on or after 1 January 2013, also fall under the new scheme that comes into effect on 1 January 2022 and so these losses will be indefinite.
Payments to foreign affiliates
A Dutch corporation can generally claim a deduction for royalties, management service fees, and most other charges paid to foreign affiliates, to the extent that the amounts are not in excess of what it would pay an unrelated entity (i.e. arm’s-length principle). Dutch companies are obligated to produce transfer pricing documentation describing the calculation of the transfer price and the comparability of the transfer price with third-party prices.
Transfer pricing documentation
Dutch transfer pricing regulations are in line with BEPS Action 13 and besides the basic administration requirement and being able to prepare an overview showing that the transfer pricing was correctly applied and is correctly reflected in the results reported in the financial statements, there are two additional reporting obligations for large, multinational companies.
The first obligation states that taxpayers must submit a country-by-country report to the Dutch tax authorities annually. This obligation only applies to multinational groups with a consolidated group turnover of at least EUR 750 million (in the prior financial year). In principle, a country-by-country report only needs to be filed in the Netherlands (with the Dutch tax authorities) if the ultimate parent company of a multinational group is a Dutch resident company or if a Dutch entity is designated as the surrogate parent.
The second obligation requires taxpayers in the Netherlands who are part of a multinational group with a consolidated group turnover of at least EUR 50 million in the previous financial year, to have a basic file and a local file in their administration. The basic file must contain an overview of the activities of the multinational group, including a description of the nature of the business activities, the general transfer pricing policy and the worldwide allocation of income and economic activities.