On 23 April 2019, the Secretary of State for Finance published a proposed Decree on the new Dutch international ruling practice. The Decree contains guidelines on the procedure, the content as well as transparency considerations. As from 1 July 2019, it will no longer be possible to conclude international rulings if:
- the group as a whole and the Dutch entity that requests the ruling do not have sufficient economic nexus with the Netherlands;
- the main motive for the entering into the transaction is to save Dutch or foreign taxes;
- the ruling relates to the tax consequences of direct transactions with certain low taxed jurisdictions.
New ruling policy
The Decree reflects changes already announced in November 2018. In addition, a list of 12 examples was published to illustrate how the new policy will be applied. Going forward, new actual situations will be published to clarify the application of the policy. The most important changes are that stricter conditions will have to be met to be able to conclude an international ruling and that a summary of every ruling will be published. In addition, the procedure to conclude a ruling will be amended.
Conditions to conclude a ruling
Pursuant to the Decree, a ruling can only be concluded if there is sufficient economic nexus with the Netherlands. This will be the case if the following two conditions are cumulatively met: (i) the taxpayer that requests the ruling is part of an internationally operating group engaged in an operating business in the Netherlands, and (ii) an operating business activity is carried out by or for the risk and account of that taxpayer by a sufficient number of relevant employees in the Netherlands. According to the examples to illustrate whether this condition is met, the number of relevant employees should be considered in relation to the total number of employees of the group who are relevant for the activities carried out by the taxpayer in the Netherlands.
It will not be possible to conclude a ruling if the main motive of the taxpayer is to save Dutch or foreign taxes. As an example, a Dutch company that borrows interest free (intra group) in order to generate a tax benefit as a result of a transfer pricing mismatch, will no longer be able to conclude a ruling if its main motive to enter into the interest free loan is to save foreign taxes.
It will also not be possible to conclude a ruling on the tax consequences of direct transactions with certain low taxed (i.e., blacklisted) entities, regardless of the activities taking place by such low taxed entity. The exact scope of this condition does not follow from the examples provided. Hopefully clarification will follow from further new actual situations that will be published in future.
A summary of all international rulings will be published, including a description of the relevant facts and main conclusions from transfer pricing reports (if relevant). These summaries will be anonymized. Summaries of ruling requests that are denied will also be published, to clarify why in these cases no ruling was concluded.
Finally, the procedure for concluding a ruling is further centralized. All rulings will be concluded in a standardized form for a period of 5 years (which can be extended to 10 years in exceptional situations). The Decree does not contain any guidance on the term within which the process of concluding a ruling should take place. It also does not contain any guidance on the possibility to appeal against a decision of the tax authorities to not conclude a ruling in a given case.
The new policy will become effective per 1 July 2019. The Decree does not say anything on existing rulings. As the Decree is only a change of policy and not a change of law, existing rulings should remain valid and should not be affected by the Decree.