Netherlands

The corporate tax system of the Netherlands contains a number of well-known features providing for an attractive investment climate, such as the fiscal unity regime with tax consolidation for group companies, a full participation exemption for capital gains and dividends from qualifying participations, and several favourable tax regimes (e.g. for patent income, investment vehicles, and income from ocean shipping activities).

As of 2021, a withholding tax (WHT) is due in certain situations, namely where the recipient is based in a low-tax jurisdiction, a non-cooperating jurisdiction in respect of information exchange, or in cases of abuse (see Conditional withholding tax on interest and royalty payments below). As of 2024, this WHT will also apply to dividends. Additionally, a legislative initiative is pending that aims to prevent the avoidance of dividend WHT by emigrating or cross-border merging of large companies with foreign entities (see Conditional dividend exit tax on relocation of head offices - proposal below).

Position of the Netherlands on the Organisation for Economic Co-operation and Development's (OECD’s) Pillars 1 and 2

In line with the joint declaration by France, Germany, Italy, the Netherlands and Spain of 9 September 2022 based on which these countries committed to implement Pillar 2 by 1 January 2024, the Netherlands submitted the draft legislative proposal ‘Minimum Tax Act 2024 (Pillar 2)’ to public consultation in October 2022. By doing so, the Netherlands takes the next step in implementing Pillar 2 as of 1 January 2024, in line with the (then) adopted Pillar 2 Directive. The draft legislative proposal is almost entirely in line with the (then) adopted Pillar 2 Directive. Entities established in the Netherlands that are part of a (multinational or large domestic) group with a consolidated group turnover of at least EUR 750 million will fall within the scope of the new legislation. Certain sectors, such as investment funds and pension funds, are outside the scope of Pillar 2.

Pillar 1 aims to allocate new taxing rights to market jurisdictions, even in absence of physical presence, via the introduction of a new set of tax rules potentially operating on top of the existing ones. Pillar 1 will apply to MNEs with profitability above 10 per cent and global turnover initially above EUR 20bn. The Pillar 1 rules are expected to be introduced by a Multilateral Convention (MLC). In addition, the MLC will also contain provisions requiring the withdrawal of all existing digital service taxes and relevant similar measures with respect to all companies, as well as a commitment not to enter into such measures in the future.

Currently, the Netherlands does not levy a digital service tax.

Informal capital situations (preventing mismatches when applying the arm's-length principle)

The so-called ‘arm's-length principle’ aims to ensure a market-conforming distribution of profits within groups. Since not every country applies this principle (in the same manner), this can lead to a part of the profits of a multinational company not being taxed. The Netherlands addresses this type of mismatch as of 1 January 2022. In short, the measure entails that no 'minus' can be claimed for tax purposes in the Netherlands if there is no corresponding 'plus' abroad.

Read more on this subject here.

Fit for 55: European Union (EU) climate agreement

The EU aims to reduce its net greenhouse gas emissions by at least 55 percent by 2030, compared to 1990 levels, and reach climate neutrality by 2050. On 14 July 2021, the European Commission presented the Fit for 55 Package with proposals aiming to deliver the 2030 CO₂ reduction target and to pave the way to become the world's first climate-neutral continent by 2050.

An important part of the measures are intended to enter into force in 2023, meaning the Netherlands will have to implement suitable legislation by then. On 13 and 18 December 2022, the EU Parliament and the Council of the EU reached provisional agreement on a number of proposals of the EU Fit for 55 package, including the revision of the EU Emissions Trading System (EU ETS) and the Carbon Border Adjustment Mechanism (CBAM). EU ETS and CBAM are aimed at further reduction of (mostly CO₂) emissions, whereby the CBAM will be a levy on the importation of certain goods into the EU, in an attempt to better reflect the embedded carbon emissions resulting from the production of the goods. The provisional agreements also includes EU ETS for maritime, EU ETS for buildings and road transport and fuels for additional sectors, the Social Climate Fund, the Modernisation Fund and the Innovation Fund. These agreements between the Parliament and the Council are provisional pending formal adoption in both institutions. Read more on EU Fit for 55 Package here.

Anti-Tax Avoidance Directive (ATAD) II ('hybrids')

The Dutch ATAD II legislation entered into force on 1 January 2020 (Anti-Tax Avoidance Directive, concerning hybrid mismatches within the European Union and with third countries). The legislation largely follows the EU Directive but is stricter in some instances (e.g. Dutch taxpayers must document the applicability of the neutralising measure for payments, losses, etc.). In addition, the Netherlands did not make use of the possibility to delay the application of the ATAD measures in relation to financial institutions, nor does controlled foreign company (CFC) inclusion always qualify as sufficient inclusion. The tax liability measure (for 'reverse hybrids') was approved as part of the 2022 Tax Plan and applies from 1 January 2022.

Read more on this subject here.

Unshell Directive / ATAD III (Preventing the misuse of shell entities)

The Netherlands generally supports the proposal for the EU Directive laying down rules to prevent the misuse of shell entities for tax purposes (the Unshell Directive, also referred to as ATAD III). According to the Unshell Directive proposal, entities at risk need to report that they meet certain indicators of minimum substance to the tax authorities. Failure to do so (in an adequate manner) means that the entity shall be considered to be a shell. The Directive proposal prescribes concrete tax consequences for situations involving a shell entity. 

The Unshell Directive proposal has not been welcomed by all EU Member States and it is unclear when and under which form it will be agreed upon. All EU Member States need to agree on the Directive proposal to be adopted. Although the proposal states that the rules shall apply as per 1 January 2024, it is almost certain that this will not be the case, pending the negotiation of the Directive in the EU.

Loss relief

An unlimited-in-time loss carryforward rule is applicable as of 1 January 2022. However, carryback and carryforward losses are only deductible up to an amount of 1 million euros (EUR) in taxable profit. In the event of profit in one year that exceeds EUR 1 million, the losses are only offsettable for up to 50 per cent of that higher taxable profit, minus the amount of EUR 1 million that may always be offset.

The new scheme also contains transitional law. For the carryforward of losses, losses incurred in financial years that started on or after 1 January 2013 fall under the new scheme that came into effect on 1 January 2022. You can read more about these loss relief rules here.

Reporting obligations for digital platform operators (DAC7)

Through the DAC7 Directive, the EU is introducing new measures to increase tax transparency in the digital economy. Digital Platform Operators are targeted to identify, trace and report on revenues made by sellers on their digital platforms. DAC7 will be implemented in national law by 1 January 2023. Digital Platform Operators will then be required to report on the year 2023 for the first time in 2024. Digital Platform Operators should already have seller due diligence procedures and controls in place as of 1 January 2023. On 20 December 2022, the upper house of the parliament approved DAC7.

Treaty developments

The Netherlands pursues an active tax treaty policy in order to maintain and extend its wide tax treaty network. Most Dutch bilateral tax treaties are based on the OECD Model Tax Convention. The government has expressed that treaties with developing countries will be based on the United Nations (UN) Model Convention more often than was the case. The Netherlands has concluded bilateral tax treaties for the avoidance of double taxation on income and capital with over 90 countries worldwide. As of 1 July 2019, the multilateral instrument (MLI) has entered into force for the Netherlands. It first had effect on 1 January 2020.

Temporal limit set-off of dividend WHT

Following the Sofina judgement (C-575/17), a more generous granting of refunds regarding dividend WHT was temporarily possible, especially to foreign companies. However, a repair that was announced earlier is effective as of 1 January 2022, meaning that, both in domestic (Dutch) and in foreign situations, the set-off of dividend WHT (and gambling tax) against CIT is limited to the amount of CIT due before the set off. Effectively, this means that companies are no longer entitled to refunds of dividend WHT (and gambling tax). Taxes that cannot be set off in a year are carried forward to future years without time limitation. 

Also, the term within which the Tax Inspector can adopt a (revised) decision regarding WHTs to be carried forward is extended from 5 to 12 years in the event of an additional claim from CIT on foreign profits.

Conditional dividend exit tax on relocation of head offices - proposal

In July 2020, the Dutch political party ‘GroenLinks’ published a bill to counter the loss of the Dutch dividend WHT claim that may occur when companies/head offices are relocated from the Netherlands to certain other jurisdictions. By proposing this bill, GroenLinks aims to discourage companies from relocating their headquarters outside the Netherlands in order to avoid dividend WHT.

The exit tax is conditional, and, as such:

1. The final settlement in the dividend tax is only invoked when a company leaves the Netherlands for a country that is not an EU member state or an EEA country that does not levy a dividend tax itself or does not provide a step-up upon entry.
2. The final settlement in the dividend tax is only levied on portfolio investors who are residents of a country that is not an EU member state or an EEA country and with which the Netherlands has not concluded a tax treaty. 

This own-initiative bill was amended several times. With the last amendment, the retroactive effect of the bill was set to 8 December 2021. The proposal is currently pending, although mid-2022 the government advised the lower house against passing this law.