The Netherlands. Kyiv 12 February 2013

Transcription

1 The Netherlands Kyiv 12 February 2013

2 Table of contents Table of contents Features of the Netherlands Holding structures Finance structures Trading structure What Atlas Tax Lawyers can do for you Contact details 2

3 Features of the Netherlands According to many surveys, the Netherlands is highly appreciated by foreign investors for many reasons, among which: Well respected jurisdiction (not blacklisted) Excellent business climate (16 th economy in the world) Strong financial sector and highly skilled professional service industry Geographical location Stable political climate and cooperative government Certainty in advance through advance tax rulings Flexible legal system Beneficial tax system numerous tax planning opportunities fully fledged participation exemption no withholding tax on interest and royalty payments Beneficial double tax treaties often reducing dividend withholding tax rate to 0% Many BITs (Bilateral Investment Treaties) 3

4 Holding structures Profits derived from shareholdings (dividends and capital gains) are tax exempt in the Netherlands (for 100%) under participation exemption: minimum shareholding 5% of nominal share capital no minimum holding period no subject to tax requirement for active companies favorable rules for (passive) real estate investments Low dividend withholding taxes under double tax treaties Favorable tax treaties with among others: Russia, Kazakhstan, Belarus and of course Ukraine According to a specific clause in the tax treaty with Turkey, the Netherlands is used a lot for outbound investments by Turkish investors Investments protected by BITs (Bilateral Investment Treaty) Exit structures available to secure tax efficient repatriation of profits No minimum profit rules Asset protection Shareholders Exit vehicle Dutch HoldCo Kazakhstan Ukraine Investment structure investors Dutch HoldCo OpCo s 4

5 Finance structures (i) Group lending Netherlands can be used as borrower towards third party lenders, such as banks Can improve credit rating Easy access to financial markets Good legal system investors Third party lender, e.g. bank Dutch FinCo needs to report a finance spread certainty in advance can be obtained with Dutch tax authorities (APA) Dutch FinCo No interest withholding tax in the Netherlands on payments to banks Reduced interest withholding tax rates under double tax treaties under tax treaty with Ukraine, interest withholding tax rate can under conditions be reduced to 2% (articles of association are guiding) OpCo s Functional currency possible In case beneficial ownership is issue in source country an equity wall can be created double tier BV in fiscal unity (tax consolidation) loan in higher tier BV and equity in lower tier BV 5

6 Finance structures (ii) Group lending Netherlands can also be used as borrower towards group lenders, such as those established in offshore jurisdictions Dutch FinCo needs to report a finance spread certainty in advance can be obtained with Dutch tax authorities (APA) No interest withholding tax in the Netherlands on payments to offshore investors Dutch FinCo Group lender Reduced interest withholding tax rates under double tax treaties under tax treaty with Ukraine, interest withholding tax rate can under conditions be reduced to 2% (articles of association are guiding) Functional currency possible In case beneficial ownership is issue in source country an equity wall can be created double tier BV in fiscal unity (tax consolidation) loan in higher tier BV and equity in lower tier BV Dutch FinCo OpCo s Equity 6

7 Financing structure (iii) Profit Participating For Dutch tax purposes, a qualifying profit participating loan ( PPL ) is regarded as equity In jurisdiction debtor, PPL is regarded as a loan (debt instrument) local rules to deduct interest payments should be observed interest withholding tax rates apply Interest income on the PPL is exempt under the participation exemption In Dutch case law the criteria for a qualifying PPL have been defined: the interest on the loan should be profit participating the loan should be subordinated the term of the loan should be at least 50 years Various formulas exist as to profit depending interest remuneration cap can be built in PPL can be granted to a subsidiary, a parent or another group company Advance tax clearance from Dutch tax authorities PPL structure should work with Ukraine Profit Participating Profit Participating investors Dutch Co OpCo s 7

8 Finance structures (iv) Debt buy back Third party creditor has granted a loan to a foreign (group) company Dutch Foundation Fair market value is below nominal value Dutch BV purchases the distressed debt for fair market value in its own name, but for risk and account of low tax entity (offshore) Dutch BV Offshore Debtors (group) The loans stay off balance in Dutch tax books Increase of value of receivable is realized in low tax jurisdiction Dutch BV is remunerated on cost plus basis (transfer pricing) advance tax clearance possible Distressed debt Dutch BV is held by Dutch Foundation (orphan structure) third party? Third party creditor 8

9 Trading structure Company in the Netherlands acquires goods from foreign company (e.g. Ukraine) and sells to customers Investors Netherlands company is acting as agent / nominee / invoicing entity Principal is located in a low taxed jurisdiction (bearing all risk) Netherlands company is usually seen as a reliable trading partner Low tax jurisdiction (principal) Ukraine entity receives remuneration to be determined (transfer pricing) Netherlands (agent) Invoice Customers Netherlands company receives cost plus remuneration or commission fee Invoice Goods Low taxed entity realizes excess income Co Netherlands entity receives invoice from Ukraine without VAT (to be confirmed) Effectively little to no Netherlands VAT Withholding tax leakage is limited 9

10 What Atlas Tax Lawyers can do for you Atlas Atlas is an independent tax boutique firm. We work with dedicated teams and provide high-end tax advisory and compliance services, mainly to medium-sized and large companies with cross-border operations. With our solid expertise and background, combined with in-depth knowledge of the market, we offer reliable and tailor made solutions. Our clients indicate they welcome our approach. Thanks to their feedback, and the commending words of our competitors, the latest edition of the International Tax Review ranked Atlas as one of the leading firms in the Netherlands. Services Full service office: tax advice and tax compliance Design tax efficient structures Implementation and maintenance of the structure, where necessary in close cooperation with trust office Key contact for foreign investors Negotiation with Dutch tax authorities 10

11 Contact details Name Jan Willem Lubbers Position Partner Contact details Qualifications Professional experience E: T: M: Tax law degree, University of Amsterdam, The Netherlands Tax partner, KPMG Meijburg & Co ( ) Jan Willem worked for a number of years as a tax inspector with the Dutch Revenue. In 1990 he joint KPMG Meijburg & Co where he became partner in He is specialized in International corporate tax, serving, amongst others, many (Eastern) European, Israeli and other worldwide operating clients. In addition, he worked for some years with KPMG in the Ukraine, establishing the tax practice there. In 2010 Jan Willem joined Atlas Tax Lawyers as partner. 11

12 Contact details Name Han Oortwijn Position Partner Contact details Qualifications Professional experience E: T: M: (Economics) tax law degree University of Groningen, the Netherlands Graduate tax accounting course in US (New York) Han has been working in the international tax practice for almost eleven years. He is specialized in international corporate tax planning. He has been involved in a wide variety of transactions including buy-outs and refinancing. Han has gained experience in advising clients in various sectors, including real estate, chemical, gas and oil and automotive industry. He also gained significant experience as in-house advisor at a large US multinational. Han has a strong focus at the CIS countries and Eastern Europe. 12