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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
Several conditions must be met before an organisation may be regarded as a
fiscal investment institution. These conditions include the way in which
the investments are financed, the distribution of the investment returns,
and the ownership of shares in the investment institution. The main
conditions are:
. up to 60% of the book value of the immovable property may be financed
with borrowed capital. For other investments the limit is 20% of the book
value;
. the profits must be distributed within eight months of the close of the
financial year;
. when the investment institution is listed on the Amsterdam Stock
Exchange, less than 45% of the shares may be held by a corporation liable
to corporation tax or several associated corporations (parent,
subsidiary, or sister corporations with interests of a third or more in
each Mother), unless the corporation is another listed investment
institution;
. when the investment institution is not listed on the Amsterdam Stock
Exchange then at least 75% of the shares must be owned by individuals,
corporations not liable to profits tax, or listed investment institutions
which meet the above condition;
. less than 25% of the shares in the investment institution may be held
indirectly by Dutch shareholders via foreign-based corporations;
. less than 25% of the shares in the investment institution may be held
directly by a single foreign shareholder.
3.5.3. Reserves
Institutions are allowed to form two special fiscal reserves, the
reinvestment reserve and the rounding-off reserve. The reinvestment reserve
is formed by non-distribution of capital gains. The level of the annual
contribution to the reserve and its absolute size are both subject to
restrictions. If, when establishing the amount of the profit to be
distributed, an amount remains due to sums being rounded off then this
amount may be added to the rounding-off reserve. The rounding-off reserve
may not exceed 1% of the paid-up capital.
3.5.4. Allowance for foreign withholding tax
Under Dutch law and Dutch tax conventions withholding tax levied abroad may
generally be set off against income or corporation tax payable by the
taxpayer in the Netherlands. As an investment institution is liable for
corporation tax at a rate of 0% it cannot make use of this facility. To
ensure that persons who invest directly and persons who invest via an
investment institute receive equal tax treatment, special arrangements are
made for investment institutions allowing the former to offset foreign
withholding taxes against income from securities and claims. Under these
arrangements an investment institution may obtain an allowance from the
Dutch tax authorities which amounts to no more than the withholding tax
levied abroad. If not all the shareholders in the investment institution
are resident or established in the Netherlands then the allowance is
calculated according to the number of shareholders resident or established
in the Netherlands.
4. Подоходный налог(Income Tax)
4.1 Taxpayers: residents and non-residents
Under the present Income Tax Act residents are liable for income tax on
their world-wide income. Non-residents are taxed only on the income from a
limited number of sources in the Netherlands. The Netherlands has concluded
a large number of double taxation conventions to prevent the double
taxation of world-wide income. If no convention is applicable, tax relief
may be obtained on the basis of the Unilateral Decree for the prevention of
double taxation. (If certain requirements are met, foreign employees
temporarily posted to the Netherlands may request the application of a
special tax arrangement known as the 35% rule, see 4.4.)
The legal definition stipulates that a taxpayer's place of residence is
determined 'according to circumstances'. Several factors are of relevance
when deciding whether the taxpayer maintains personal and economic ties
with the Netherlands. These include a family home, employment, or
registration in a municipal register. Nationality is not a determining
factor, but it may be relevant in some cases. The law also provides for a
number of special cases. The crews of ships and aircraft with a home
harbour or airport in the Netherlands are deemed to be residents of the
Netherlands unless they have established residence abroad. Dutch diplomats
and other civil servants serving abroad remain residents of the
Netherlands. Foreign diplomats and the staff of certain international
institutions are exempt from Dutch income tax.
If both spouses are resident in the Netherlands then married couples are
taxed individually on their personal income (business profits, salary,
pension, etc.) less certain deductions, allowances and premiums. Investment
income and non-source related deductions such as certain personal
obligations and exceptional expenses are attributed to the spouse with the
highest personal income. If only one of the spouses is resident in the
Netherlands then their incomes are regarded as completely separate.
4.2 Taxbase and rates
4.2.1. Taxable income of residents
The tax year for persons is the calendar year. Residents are taxed on their
total gross income, which is the income from all domestic and foreign
sources less the associated expenses. This income may be further reduced by
certain deductions and allowances not directly related to a specific source
of income. The balance is the total net income. This total net income is
further reduced by the deduction of losses and a personal allowance before
tax is levied. The result is the taxable amount, which is calculated as
shown below. The various terms are explained in sections 4.2.3 and 4.2.4.
|GROSS INCOME (4.2.3): | | |
|profits from business or | |............ |
|professional activities | | |
|income from a substantial holding | |............ |
|net income from employment and | |............ |
|services rendered outside employment| | |
|net income from capital | |............ |
|net income in the form of periodic | |............ |
|payments | | |
| | |______ |
| | |+ |
|TOTAL GROSS INCOME |(A) |............ |
|MINUS: DEDUCTIONS (4.2.4): | |............ |
|contribution to the old-age reserve | |............ |
|the self-employed persons' deduction| |............ |
|business-assistance deduction | |............ |
|personal obligations (special | |............ |
|expenses) | | |
|exceptional expenses | |............ |
|tax deductible donations | |............ |
| | |______ |
| | |+ |
| |(B) |............ |
|TOTAL NET INCOME |(A-B) | |
|minus: deductible losses |(C) | |
|TAXABLE INCOME |(A-B-C) | |
|minus: personal allowances |(D) | |
|TAXABLE AMOUNT |(A-B-C-D) | |
4.2.2. Tax rates and personal allowances
Income tax is levied on the taxable amount calculated as shown above. This
is a progressive tax. The rates are:
|33.90 |on the first |NLG 15,255 |
|37.95% |on the next |NLG 33,739 |
|50% |on the next |NLG 58,762 |
|60% |on the remainder | |
The 33.90% rate is comprised of 4.5% tax and 29.40% social security
contributions, the second rate is comprised of 8.55% tax and 29.40% social
security contributions, whilst the 50% and 60% rates consist solely of tax.
A rate of 16% (first rate) and 20.05% (second rate) is applicable to
persons aged 65 and over, as they are no longer liable for several social
security contributions.
The above diagram shows that a personal allowance is deducted from the
total net income before tax is levied. The level of this allowance is
determined by the tax class to which the person is assigned. This level
depends on the individual circumstances. The basic personal allowance is
NLG 8,950. For married or single persons with a spouse or partner without
an income the personal allowance is NLG 17,473. For single parents with
children living with them the allowance is NLG 15,768. For single parents
in paid employment this amount is increased by a maximum of NLG 6,821. For
persons older than 65 years the personal allowance is increased by NLG 520
to a maximum of NLG 5,678.
4.2.3. Total gross income
The Income Tax Act distinguishes five different sources of income, which
together comprise the total gross income. The five categories are:
|I. |profits from business or professional activities; |
|II. |income from a substantial holding; |
|III.|net income from employment and from services rendered outside |
| |employment; |
|IV. |net income from capital; |
|V. |income in the form of periodic payments. |
I. Profits from business or professional activities
For income tax purposes the definition of 'profits' is the same as that for
the assessment of the corporation tax which is to be levied, except that in
assessing profits for corporation tax purposes a number of special factors,
notably those which reflect the difference between liability to pay income
tax and liability to pay corporation tax, are taken into consideration.
This means that for income tax purposes only sections 3.2.1, 3.2.3 to 3.2.6
(in part), 3.2.7, 3.2.8 and 3.2.11 are applicable.
The following additional rules apply to persons conducting a business who
are liable for income tax.
Accelerated depreciation when starting a business
From 1 January 1996 an accelerated depreciation of fixed assets is
permitted, subject to certain restrictions, for persons who have recently
started a business.
Exemption of profits derived from the liquidation of a business
Only part of the profits derived from the liquidation of a business are
taxable. The exemption varies with the age of the person who conducted the
business. The maximum exemption is NLG 45,000.
Transfer of a business to a relative
If a person conducting a business transfers the business or part thereof to
his or her spouse or partner or children, the transfer may, on request, be
exempted from income tax. The successor then takes the place of the person
conducting the business. A similar smooth transfer also takes place
following the death of the person conducting the business and the
dissolution of the community of property.
Discontinuation of a business liable for income tax when it is to be
continued as business liable for corporation tax
If a person conducting a business which is liable for income tax wishes to
continue the business activities in the statutory form of company which is
subject to corporation tax, e.g. a private company, then he or she may
request an exemption from income tax when this conversion is made. The
company then takes the place of the person conducting the business. The
Ministry of Finance has published standard conditions for such situations.
Deduction for assistance in the business
If the spouse or partner of a taxpayer conducting a business works for that
business for a certain number of hours per year then the taxpayer may make
a deduction for that assistance from his or her gross income. The deduction
is made from the profits at a rate which is dependent on the number of
hours the spouse or partner works for the business. The rate increases to a
maximum 4% when the spouse or partner works for 1,750 hours or more in the
business in that financial year. At the request of both the taxpayer and
his or her spouse the deduction for assistance in the business may be
waived. The spouse is then assessed separately on the basis of the wage or
salary received from the business.
Old-age reserve for the self-employed
Resident taxpayers who derive income from the profits of a business or from
self-employment are allowed to offset a certain percentage of their gross
income towards the provision of a retirement pension. The annual
contribution to this reserve may be no more than NLG 21,367 and at no time
may the reserve exceed the book value of the business's assets. If this
reserve is not converted into an annuity when the business is terminated
then tax will be levied over this amount at a rate of 45%.
Deduction for self-employed persons
Resident self-employed taxpayers between the ages of 18 and 65 who devote
at least 1,225 hours to running a business are allowed to offset a
deduction for self-employed persons against their gross income. The amount
of this deduction is in inverse proportion to the size of the company's
profits. A fixed deduction of NLG 13,110 is allowed on profits of less than
NLG 96,170. The allowance gradually declines to NLG 8,730 on profits of NLG
108,395 or more. Persons who have recently started a business may deduct an
additional sum of NLG 3,840 for the first three years.
II Income from a substantial holding
Income, including capital gains or losses, from a substantial holding in a
corporation is subject to income tax and is taxed at a rate of 25% insofar
as this income exceeds the first two tax brackets.
A taxpayer is regarded as having a substantial holding in a corporation if
he or she, either alone or with his or her spouse, holds directly or
indirectly 5% of the issued capital. If the corporation has issued
different classes of shares, a substantial holding also exists if the
taxpayer, either alone or with his or her spouse, holds more than 5% of the
issued capital of a particular class of shares. If the taxpayer holds a
substantial interest in a corporation, jouissance rights and debt-claims
issued by that corporation and held directly or indirectly by the taxpayer,
either alone or with his or her spouse, are regarded as forming part of the
substantial holding.
Interest derived from debt-claims forming part of a substantial holding is
taxed at the normal rate of income tax. Dividends and capital gains derived
from the alienation of shares or from the redemption of debt-claims are
taxed at a proportional rate of 25% in the income tax, insofar as this
income exceeds the first two tax brackets. In case of a capital loss 25% of
that loss may be offset against the tax which would otherwise be due. For
this purpose an arrangement similar to that for the offsetting of losses is
applicable (section 3.2.11). In case of emigration of the taxpayer the
substantial holding is deemed to be alienated. However, the tax due will
not be collected as long as the substantial holding is not disposed of.
After the elapse of 10 years the remainder of the tax levied because of the
deemed alienation at the time of emigration, is pardonned.
For non-residents the income from the substantial holding is only subject
to tax in case of a substantial holding in a corporation wich is a resident
in the Netherlands. With respect to non-residents a corporation is also
deemed to be a resident of the Netherlands if it was resident in the
Netherlands for at least five years during the last ten years. With respect
to non-residents the substantial holding is deemed to have been alienated
in case of the transfer of the place of effective management of the
corporation from the Netherlands to elsewhere.
III. Net income from employment and services rendered outside employment
This income is comprised of all income other than business income that is
received in cash or in kind from present and former employment, together
with income derived from services rendered outside employment.
Income from present employment includes salaries, payments, gratuities,
tips and certain periodic payments received under social security
legislation (in cash), and the free use of a private car and free housing
paid for by the employer (in kind). Income from past employment includes
pensions, and invalidity, disablement and unemployment benefits.
Salaries, wages and certain periodic payments received under social
security legislation are subject to the salaries tax. This tax is withheld
by the employer, and is essentially an advance levy on the person's final
income tax assessment (see 4.5.1).
Income from activities and services which does not qualify as income from
business or employment is considered to be income from services rendered
outside employment. To be regarded as income there must be a reasonable
expectation that these activities will yield income. Examples are the
provision of boarding for lodgers, and fees for services and copyrights.
In principle expenses incurred in connection with employment and the
provision of services are deductible from the income derived from these
activities. The deduction is equal to the actual expenses less
reimbursements or, subject to upper and lower limits, 12% of the gross
salary, whichever is larger. A fixed sum is tax-deductible for travel
between home and work.
IV. Net income from capital
Net income from capital is comprised of all income from movable and
immovable property and rights not related to goods. Only the yield from
property and rights is taxable; the increase in the value of the assets is
exempted. There is no capital gains tax in the Netherlands.
A special provision is applicable to owner-occupied property. The property
is taxed at an imputed rental value, which represents the balance of the
revenue and expenses connected with the use of a dwelling. This rental
value, which is a positive amount, is assessed on statutory tables. As
normal expenses are included in the imputed rental value, no expenses other
than (mortgage) interest and ground rent may be deducted.
Interest and dividends received by private investors from designated credit
or investment institutions which mainly participate in environmental
projects are exempt from income tax.
Income from stocks and shares includes cash dividends, stock dividends and
bonuses. The final payment to the shareholder following the liquidation of
a corporation is regarded as a dividend if it exceeds the average amount
paid on the shares concerned.
Notional dividends from foreign investment corporations and funds are
income from assets, and are taxed accordingly. In principle the income from
the latter is set at 6% of the market value of the shares.
A maximum allowance of NLG 1,000 is granted insofar as dividends subject to
Dutch dividends tax exceed related expenses (including interest expenses).
Under certain conditions the amount of the dividend allowance can be
raised:
for dividends received from specific private participation companies, the
allowance is raised by a maximum of NLG 1,000;
for dividends received in connection with employee savings and profit-
sharing schemes, the allowance is raised by a maximum of NLG 1,000;
For dividends received from specific participation companies which mainly
participate in starting entrepeneurs (both natural persons and corporate
bodies), the allowance is raised by a maximum of NLG 5,000. However,
insofar as the corresponding interest allowance in connection with starting
entrepeneurs is utilized, this amount of NLG 5,000 is reduced.
For married taxpayers the above mentioned amounts of the dividend allowance
are doubled. The dividend allowance is not applicable with respect to
dividends from a substantial holding in a corporation.
Interest is more than just the interest received from a debtor or bank.
There are special provisions for taxation of the increase from the lower
issue price to par value of zero bonds and deep discount bonds, and the
notional interest on the bare ownership of rights and claims of which the
temporary usufruct is divided.
A maximum allowance of NLG 1,000 is granted insofar as any interest
received exceeds the interest paid in connection with sources of income and
personal obligations. This is exclusive of the interest paid on a mortgage,
which is related to the purchase or renovation of owner-occupied property.
Under certain conditions the amount of the interest allowance can be
raised:
for interest received in connection with employee savings and profit-
sharing schemes, the allowance is raised by a maximum of NLG 1,000;
for interest received in connection with a subordinated loan to a starting
entrepeneur of at least NLG 5,000, or interest originating from specific
participation companies wich mainly participate in starting entrepeneurs
(both natural persons and corporate bodies), the allowance is raised by a
maximum of NLG 5,000.
For married taxpayers the above mentioned amounts of the interest allowance
are doubled. Furthermore, the taxpayer is entitled to an additional
interest allowance when his children under the age of 18 receive interest,
up to a maximum of NLG 500 per child.
The interest component of a capital payment from a life insurance policy
(and the investment income) is not taxed if the payment occurs because the
person insured dies before the age of 72. The beneficiary is generally
allowed the same exemption for payments upon the death of the insured
person at or after the age of 72 if the premiums have been paid over a
period of at least 15 years. Interest included in payments of up to NLG
62,000 on a fixed date is exempt from income tax if the annual premiums are
paid over a period of at least 15 years. This is also applicable to
interest included in life insurance payments of up to NLG 210,000 if the
annual premiums are paid over a period of at least 20 years. Both
exemptions are subject to the condition that the highest annual premium
paid for the insurance
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