De staatssecretaris heeft begin juni 2016 een besluit gepubliceerd waarin de toepassing van de samenloopvrijstelling overdrachtsbelasting wordt verruimd. De staatssecretaris keurt daarin goed dat -op verzoek-de samenloopvrijstelling ook kan worden toegepast bij de verkrijging van een bouwterrein dat volgens de Nederlandse Wet op de omzetbelasting 1968 (nog) niet als bouwterrein kwalificeert maar volgens de BTW-richtlijn wel. Daarnaast heeft de Hoge Raad onlangs een belangrijk arrest gewezen over de economische eigendomsverkrijging in de overdrachtsbelasting.
Dutch state secretary of finance issue Decree extending exemption applicable to Dutch RETT on building sites
Pursuant to Dutch law, an exemption is generally available to the Dutch Real Estate Transfer Tax ("RETT") due when the transaction is also subject to Dutch VAT (the so-called "concurrence exemption"). The Dutch state secretary of finance issued a decree further regulating this matter in which it is confirmed that the application of the concurrence exemption for the RETT due on the transfer of a "building site", as defined in the VAT Directive.
The meaning of a "building site" is provided in the VAT Directive and also in the Dutch VAT Act of 1968, but the definition contained Dutch VAT Act of 1968 is stricter than the more broad language of the VAT Directive. In the decree, the Dutch state secretary of finance confirms that - upon request - the concurrence exemption can be applied to transaction of real estate that according to the VAT Directive qualifies as a "building site", even when such real estate would not reach such qualification under the Dutch VAT Act of 1968 Law. The approval can be obtained for real estate acquired as of 17 December 2015 and is subject to certain conditions.
Real estate developers can do more without incurring in Dutch RETT
Real estate developers should have more room for structuring transactions with demolished (or to be demolish) buildings, without incurring on Dutch real estate transfer tax ("RETT"). This is the outcome of a recent leading case from the Dutch Supreme Court deciding that there should be no RETT due when the purchaser, acting on behalf of the seller, demolishes the structures in a Dutch real estate property to make the land ready for building (also in case the costs for the demolition and site preparation are borne by the purchaser). To date, the Dutch tax authorities would take the position that in such cases, when there is a so-called beneficial ownership acquisition, the real estate transaction should be subject to RETT.
From the details of the above-mentioned Supreme Court case, it follows that the purchaser and the seller agreed that upon seller's request the purchaser would terminate the existing lease agreements with current tenants and assist with the evacuation of the building. All costs incurred (including lease termination and eviction fees and compensations) were charged to the purchaser. Furthermore, the agreement had a termination clause that would be triggered in case the necessary construction permits were not obtained in time. In such case, costs incurred (if any) would be borne by seller.
Based on the details of the agreement and the termination clause, the Supreme Court decided that the transaction should not be treated as a beneficial ownership acquisitions and, consequently, the Dutch real state should qualify as a "building site" which acquisition is in principle subject to Dutch VAT and exempt from RETT. This decision could give good grounds for future real estate development projects to benefit from this reasoning. In practice however it is important to analyse the situation with caution and to draft the underlying documentation carefully.