There are various limitations on the deduction of interest under Dutch tax law. They can be split into five categories: some stem from the background that income generated through the interest costs is exempt; a large group combats (deemed) abuse structures; others address general transfer pricing issues; another group concerns the effective recapture of interest deductions; and the final group the deferral of interest deductions. Some of these limitations also apply to situations in which the creditor is not a related party.
The various limitations on interest deductions are:
As of 1 January 2002, Dutch law includes specific transfer pricing legislation under art. 8b CIT. The legislation is based on article 9 of the OECD Model convention.
In terms of required documentation, the conditions set are deliberately vague to allow more leeway to taxpayers in practice. The two primary conditions with regard to the supporting documentation are
In case of conduit finance transactions, the real interest income and real interest costs are ignored and replaced by a deemed service fee, if the company receiving and paying the interest is not deemed to run any real risk with regard to the combined transactions (art. 8c'1 and 8c'3 CIT). A company is deemed not to run a sufficient risk if its equity which is at risk in connection with the transactions is not at least equal to 1 percent of the outstanding amount, or Euro 2,000,000 (per company not per transaction), whichever is lower. For an interesting alternative structure in this regard, please contact us.
The current legislation distinguishes between three types of loans of which the interest is not deductible. These are:
This article, introduced in 1997, combats a number of deemed abuses. These are:
Certain exemptions from these limitations are available. First, transactions done for business reasons may be exempt from the limitations under both 1 and 2. Furthermore, if it can be shown that the creditor is subject to a reasonable effective tax rate (7% or more), an exemption may also be available from the limitations under 2.
Art. 12 CIT determines that if a debt is converted into equity, the difference between the nominal value of the debt and the market value thereof is subject to taxation. Although this article is not actually a limitation on the deduction of interest, it does effectively result in a claw back of interest deductions by forcing a profit when converting debt into equity either because outstanding interest payments (which have lead to deductions) become taxable, or the conversion of principal leads to a taxable amount which "eats up" part of the interest payments which have been paid.
Since this article makes it virtually impossible to save any company in financial trouble without incurring a large tax bill, some relief has been promised (see our our January 2003 newsletter).
Based on the idea that the costs related to exempt income should not be deductible either, costs related to exempt participations are not deductible. However, applying this idea consistently would mean that the exemption given for companies subject to Dutch corporate income tax, in order to avoid double taxation at the corporate level, would be partially annulled by denying the deduction of cost made in connection with such participations. Thus, the legislator determined that costs - including income and gains from currency exchange movements - relating to a participation are not deductible, unless it is shown to be likely that these costs are indirectly connected to attaining profits taxable in the Netherlands.
There is a case pending before the EU Court of Justice asking whether the limitation on the deduction of costs to participations with taxable income in the Netherlands is in compatible with EU law (freedom of movement of capital and freedom of establishment). In the opinion of the Advocate General this legislation is not compatible.
Hereafter, the limitation for tax consolidated groups will be discussed. The limitations for legal mergers and demergers are similar in nature and setup.
The limitation on the deduction of interest in case of leveraged take overs is limited. In short, this means that if a company borrows from the group, acquires a target and forms a tax consolidated group with that target, then the profits of the target can not be offset by the interest costs related to the acquisition of the target during the first seven years following the acquisition. However, those costs may be set off against other results of the tax consolidated group, provided that these other profits are not exempt from taxation under a measure for the prevention of double taxation.
This anti-abuse measure is not applicable if:
The total amount of interest which could not be deducted during the first seven years after the acquisition of the target under the anti-abuse measure, can be deducted thereafter against profits from the target as well.
Hereafter, the limitation under the tax consolidated group regime as of 1-1-2003 will be discussed (art. 15ac'5 CIT).
If a member of a tax consolidated group holds foreign real estate or a permanent establishment financed by loans from other members of the consolidated group, it is possible to get an exemption for a larger amount than the amount taxed by the country where the real estate or permanent establishment is situated. The reason for this is that the foreign country may allow an interest deduction for the previously mentioned loan, whilst the Netherlands may exempt the gross foreign income since the interest on the loan is lost in the consolidation of the group results. This perceived form of abuse has first been fought (and lost) by the Dutch tax authorities in court; thereafter it has been fought by the inclusion of a condition to the formation of a tax consolidated group, stating that the exemption given for the tax consolidated group can not be higher than that which the members could have gotten on a stand alone basis; after the Dutch Supreme Court determined this condition to be unconstitutional, the government enacted an amended version of the anti-abuse measure into the law as applicable before 1 January 2003 (15'6 CIT) and the law thereafter (15ac'5 CIT). Under the amended version, the intragroup interest charges related to this permanent establishment are added to the total taxable income of the consolidated group when calculating the available exemption.
Relief is provided under 15ac'6 CIT. Article 15ac'5 is not applicable to the extent that the taxpayer can show that the intragroup interest is not deductible in the country of the permanent establishment.
Although there are other cases available, the most well known is the Dutch Supreme Court decision of 27 January 1988, nr. 23 919 in which three forms of loans were identified of which the interest is not deductible. The first concerns profit sharing loans. This category has in the meantime been replaced by the legislation discussed under "2.4 art. 10'1d CIT, Interest on profit sharing loans" hereabove and is therefore only applicable to a limited extent. The two remaining categories are still fully applicable. These are: