In late May 2012, the Competent Authorities of the United States and the Netherlands entered into an agreement to clarify application of the United States-Netherlands income tax treaty (the “Treaty”) with respect to U.S. source dividends and interest paid to a limited fund for mutual account (LFMA). An LFMA is a Dutch arrangement in which participants pool capital to invest collectively in various assets and share in the investment proceeds.
An LFMA is not a legal entity, but rather an aggregate of the LFMA’s assets and liabilities. A participant in an LFMA is entitled to a pro rata share of the LFMA’s income based on the amount of participations held by the participant. Participations represent equal interests in the LFMA’s net asset value. Dutch tax law treats an LFMA as a fi scally transparent entity. Each participant separately takes into account, on a current basis, his/her respective share of income paid to the LFMA, whether or not actually distributed. The character and source of the participant’s share of the LFMA’s income are determined as if the participant had realized the income directly.
Because an LFMA is not subject to tax in the Netherlands, an LFMA is not a “resident” of the Netherlands within the meaning of Article 4 (Resident) of the Treaty and cannot claim treaty benefi ts. Nevertheless, paragraph 4 of Article 24 (Basis of Taxation) provides that income “derived through a person that is fi scally transparent under the laws of either State… shall be considered to be derived by a resident of a State to the extent that the item is treated for the purposes of the taxation law of such State as the income… of a resident.”
The Competent Authorities have agreed that, pursuant to Article 24(4) of the Treaty, “U.S. source dividends and interest received by an LFMA will be treated as derived by a resident of the Netherlands to the extent such income is subject to tax as income of a resident of the Netherlands.” Therefore, a person who is a resident of the Netherlands and derives U.S. source dividends and interest through an LFMA may be eligible for treaty benefi ts, if such person otherwise meets applicable Treaty requirements.
An LFMA may claim treaty benefi ts on behalf of its participants by filing Form W-8IMY (Certifi cate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. Branches for United States Withholding), in accordance with applicable U.S. procedures, as either a withholding foreign partnership or a nonwithholding foreign partnership.