Налоговая система Нидерландов

have to be reversed in the next 5 years in equal steps. If the depreciated debts of a subsidiary to a parent company are converted into share capital then a special provision prevents tax claims being lost. In such cases an amount equal to the depreciation of the debt is, in principle, again regarded as part of the profits of the parent company. This is also applicable when the debt is sold to an affiliated company or if it is discharged.

3.3.4. Costs Shareholdings may give rise to costs as well as gains. In principle such costs are not deductible. However an exception is made when these are indirectly conducive to making profits taxed in the Netherlands. With foreign shareholdings this may occur if the foreign subsidiary has a permanent establishment in the Netherlands. In practice the main non-deductible costs are the costs of financing the participation. The taxpayer must also show that the costs are conducive to making domestic taxable profits.

3.3.5. Converting a permanent establishment into a subsidiary As losses incurred by foreign subsidiaries cannot be offset against profits made by the Dutch parent company, foreign activities from which profits are not directly expected are often undertaken through a permanent establishment. Foreign losses can then be directly deducted from the profits of the Dutch company. To prevent losses being deducted from the profits in the Netherlands whilst later profits in this country are not taxed, it is stipulated that when a permanent establishment is converted into a subsidiary then the profit made by the subsidiary up to the amount of the losses deducted from the Dutch profit is not exempted from taxation. This obligation to compensate profits made by a subsidiary with earlier losses incurred by the permanent establishment is applicable to the eight years preceding the conversion, and is subject to the condition that the losses have not been offset against other foreign profits.

3.3.6. Losses resulting from liquidation In principle losses from participations cannot be taken into account by the parent company. An exception is those losses resulting from liquidation. The liquidated subsidiary cannot be compensated for these losses in the future. For this reason these losses may be taken into account by the parent company, under certain conditions, in the year in which the liquidation of the subsidiary is completed. The loss resulting from liquidation is the difference between the liquidation payments and the sum paid to acquire the participation (the 'sacrificed amount'). Special rules apply if a tax deduction has been claimed for this participation (see 3.3.3.). There are additional requirements for taking account of the losses resulting from the liquidation of foreign participations. One requirement is that the holding must be at least 25%, and that it must have been held during the five years preceding the discontinuation of the subsidiary's business, the year of discontinuation itself, and during subsequent years in which liquidation payments are received. In addition no loss resulting from liquidation can be taken into account if the participation was obtained from a foreign associated company when the operations concerned are discontinued within three years.

3.3.7. Directive on parent companies and subsidiaries In 1992 Dutch legislation was amended in line with the EU directive on parent companies and subsidiaries. The relevant Act has a retroactive effect from 1 January 1992. The participation exemption has been extended in several respects. For example an investment in a company established in another EU member state can be regarded as a participation covered by the participation exemption. For this purpose a shareholding of at least 25% is required. The possession of at least 25% of the voting rights in a company can also be regarded as a participation under certain conditions, even if the shareholding is less than 5%. Under this Act dividend tax is not levied on dividend paid to a company established in another member state when the company has an interest of at least 25% in the company paying the dividend. This act was further amended in 1994 in order to give the exemption of dividend tax a wider application than the EU directive. If certain conditions are met then the exemption now becomes applicable when the shareholder has an interest of at least 10% in the company's capital, or holds at least 10% of the voting shares.

3.4. Fiscal unity; consolidation for tax purposes Under certain conditions a parent company may form a fiscal unity with one or more subsidiaries. For corporation tax purposes this means that the subsidiaries are deemed to have been absorbed by the parent company. The main advantages of fiscal unity are that the losses of one company can be set off against profits from another company, and that fixed assets can be transferred at book value from one company to another. This type of tax consolidation is possible only between a parent company and its wholly owned subsidiaries (in practice 99% is sufficient) when all the companies involved in the consolidation are established in the Netherlands. Other conditions are that the parent company and the subsidiaries have the same financial year, and are subject to the same taxes. A request to form a fiscal unity must be submitted to the Inspector on behalf of all the companies involved. The standard conditions drawn up by the Minister of Finance must be met. These conditions cover a large number of technical aspects involved in consolidation. The fiscal unity can be terminated upon request, or will be terminated automatically if any of the conditions are not met. Since January 1997 new regulations apply to leveraged acquisitions, in case a leveraged Dutch acquisition vehicle is used to acquire a Dutch operating company. The aim of these regulations is to prevent the acquisition vehicle to form a fiscal unity with the target company in order to offset its interest expenses against the profits of the operating (target) company. In principle, following to the new fiscal unity rules these (interest) expenses are disallowed (for a period of eight years) to be offset against the profits of the target company.

3.5. Investment institutions 3.5.1. General Subject to certain conditions Dutch-based public companies, private companies and mutual funds may apply for recognition as investment institutions for taxation purposes. An investment institution can request to pay corporation tax at 0%. The purpose of this system is to ensure that persons investing in an investment institution shall not receive a less favourable treatment than persons who invest directly. This would not be the case without a special scheme. As stated in section 3.3.2. an investment institution does not qualify for the participation exemption, whether it be a parent company or a subsidiary.

3.5.2. Conditions