The Dissolution of the Netherlands Antilles and New Planning Opportunities

Transcription

1 Stand out from the crowd The Dissolution of the Netherlands Antilles and New Planning Opportunities Presented by: Geralda Buckley Amicorp Switzerland AG February 2010

2 What we will discuss in the next 30 minutes Historical and Actual Facts of the Netherlands Antilles (N.A.); What does the dissolution entail? What will change or not change due to the dissolution? Other interesting changes in the N.A.; What has remained the same in the N.A.; Conclusion.

3 The Netherlands Antilles: Discovered by Christopher Columbus in 1493, and initially settled by Spain; conquered by the Dutch West Indies Company in the 17th century. In 1954, the status of the islands was upgraded from a colonial territory to a part of the Kingdom of The Netherlands as a separate country within the kingdom; Initially, the N.A. consisted of Aruba, Curaçao, Bonaire, St. Maarten, St. Eustatius, and Saba; however, in 1986, the island of Aruba was granted Status Aparte.

4 The Netherlands Antilles (2): The head of state is the ruling monarch of The Netherlands, who is represented in the N.A. by a governor; The legislative branch is two-layered. Delegates of the islands are represented in the government of the N.A., but each island has its own government that takes care of the daily affairs on the island; The N.A. is not part of the E.U., but rather has the status of OCTs (overseas countries and territories [landen en gebiedsdelen overzee]). Citizens from all 6 islands are EU citizens.

5 The Netherlands Antilles (3): Since 1939, Curaçao has been a major international financial center and where all major decision-making of the N.A. has taken place; Because of its geographical location, the N.A. has always been a bridge between Europe, the U.S.A. and Latin America;

6 The Financial Sector in The N.A.: On 12/29/1999, the N.A. passed The New Fiscal Framework (into force 1/1/2002), which removed the distinction between onshore and offshore companies, simplified tax rates, and introduced a withholding tax; The N.A. is fully compliant with the requirements of the Organization for Economic Cooperation and Development (OECD), the Financial Action Task Force (FATF) and the European Commission; As a result, the N.A. has become a very attractive location for holding, finance, trading and royalty structures and other geographically mobile activities, without qualifying as a harmful tax jurisdiction.

7 The Dissolution of the N.A.: Present situation: The Kingdom of The Netherlands consists of: The Netherlands Aruba The N.A. After 10/10/2010, the Kingdom of The Netherlands will consist of: The Netherlands* * Bonaire, St. Eustatius and Saba, ( the BES Islands ) will become a direct part of the Netherlands as special municipalities (bijzondere gemeente). Aruba (status aparte) Curaçao (new associate in the Kingdom with Status Aparte) St. Maarten (new associate in the Kingdom with Status Aparte)

8 What will change for the Islands?

9 Not much!

10 What Will Not Change in the Short Run: The N.A. guilder (ANG) will remain for the time being. At a later stage, most likely the USD will be introduced as the main currency in Curaçao. In Bonaire (BES), it has already been decided that the USD will be the main currency as per 1/1/2011; The Supreme Court of the Netherlands will remain the court in the highest instance for the whole Kingdom; The islands may continue to access the Common Court of Justice of Aruba and the N.A. (with the joint court probably receiving a new name);

11 What Will Change in the Short Run: All foreign affairs related to the Kingdom will be dealt with by the Dutch Minister of Foreign Affairs; Defense (NATO) and foreign affairs will be Kingdom matters; The "Tax Arrangement for the Kingdom" ("Belastingregeling voor het Koninkrijk" / BRK) will be amended. This will have consequences for the BES islands, but not for Curaçao and St. Maarten; Curaçao, as well as St. Maarten, will be the successors of all international treaties.

12 Changes for the BES Islands (1): The BES Islands (as part of The Netherlands) will not be able to raise federal taxes. Federal Netherlands taxes (such as income, profit [15%], and wealth tax) will be raised at national level ( landsniveau ) and will be included in the new proposed legislation Belastingwet BES ; Just as any Netherlands province, however, the BES Islands will be allowed to raise local taxes. This framework will be arranged in a second proposed legislation Wet Financien BES ; Any legal entity based on the BES Islands (thus based in The Netherlands), will most likely be subject to Netherlands Tax (corporate income tax and dividend tax).

13 Changes for the BES Islands (2): However, it is said that there will be the possibility for qualifying entities* to opt for the Belastingwet BES (Real Estate and Local Profit Tax), instead of the standard Netherlands Profit taxes (corporate income tax and dividend tax); * In order to qualify, the entity must have or be: 1. Active business in BES (classical holding, finance and royalty structures) ; 2. If no active business, then at least 3 local employees on payroll and real estate (office); 3. An entity which is based in the Free-zone; 4. An entity of which at least 95% of the shares is held by a BES-resident individual and that is holding more than 50% in one of the abovementioned entities; Qualifying entities would, according to the proposed Belastingwet BES, not be subject to standard Netherlands Profit Tax.

14 Changes for the BES Islands (3): The suggested effective tax rate on real estate is 0.8% (not raised in case of own house, for example); Local Profit Tax would be similar to dividend tax, and would be raised on profits derived from stock, and profit-sharing of the BES established entities. The tax rate would be 5%; It is assumed that the N.A. Wage and Income Tax would be sustained in general form in the short run, but included in the Belastingwet BES in the long run; There is a possibility for companies established or existing in the BES Islands to benefit of Netherlands DTAs.

15 Other Interesting Changes New Profit Tax Regime was approved, with effect from January 1, 2009; New Information Exchange Treaties were signed; The N.A. became White listed by the OECD; A New Spain - N.A. route, as per January 27, 2010; The introduction of the Dutch Caribbean Securities and Exchange Services ( as per fall in 2009).

16 A New Profit Tax Regime: The new Profit Tax regime entered into force last month with retroactive effect as of January 1, 2009; The most important amendments are: The participation exemption: A 100% participation exemption will apply to all qualifying participations held by corporate taxpayer in the N.A., regardless of the residence of the company in which the participation is held; The exemption for foreign profits: foreign profits of Permanent Establishments, such as branches, will be 100% exempt, instead of the previous 95%; The tax-exempt company (the NABV ): under the new legislation, the activities of the NABV, besides investing in debt instruments and/or securities and/or deposits, can now also consists of licensing activities with regard to intellectual property rights. The N.A.B.V. is usually used as entity for mutual funds.

17 Double Taxation Agreements: Currently, the following DTAs are in force: The Netherlands Tax Treaty (the Belasting Regeling Koninkrijk or BRK ) The BRK, was the DTA on which the famous Dutch Sandwich was based on. Although an outdated structure, if leveraged and setup properly, the Dutch Sandwich can be still used as an holding structure. However, nowadays, simpler alternatives are available. Aruba (BRK); Norway; Jamaica..

18 Dutch Triple Sandwich: The Dutch Sandwich can be optimized by interposing a Dutch COOP. By doing this, withholding tax on the dividend route can be reduced from 8.3% to 0%; The Netherlands COOP, like the Netherlands N.V. or B.V., benefits from the participation exemption, under Netherlands and E.U. Law (Parent-Subsidiary Directive), and has access to all the Netherlands DTAs; Distributions from a COOP are not considered a distribution of dividends as a coop has no share capital. As such, there is no (dividend) withholding tax on distributions made by the COOP.

19 Illustration :Dutch Triple Sandwich 0% CIT Netherlands Antilles N.V. or B.V. Netherlands Antilles N.V. or B.V. 0% WHT 0% CIT Netherlands COOP 0% WHT Netherlands B.V. WHT: rate of Specific tax treaty 0% WHT Treaty Country EU Subsidiary

20 Tax Information Exchange Treaties: The N.A. has currently the following TIEAs in place: Denmark Sweden Finland Iceland Greenland Faroer Islands Australia New Zealand United States of America Mexico Spain* Cayman Islands * Due to the fact that the TIEA with Spain was signed on June 10, 2008, and ratified as per January 27, 2010, the N.A. has been removed from Spain s blacklist. This will allow the N.A. to take advantage of the business which passes through Spain, especially from Latin American countries with tax treaties with Spain. Also for Central or Eastern European countries, the Spain N.A. route provides a free exit from Europe.

21 The Spain N.A. Route: As mentioned before, the N.A. was removed from the Spanish blacklist as per January 27, 2010; The route combines the following benefits in one: 1. No withholding taxes from EU resident subsidiaries to the Spanish ETVE ( Entidad de Tenencia de Valores Extranjeros ); 2. Neither income nor withholding tax is applied to dividends and capital gains received by the Spanish ETVE; 3. Dividends and capital gains received by the N.A. N.V. benefit now from a 100% participation exemption from the applicable local income taxation based on the new Profit Tax legislation; 4. The N.A. does not impose withholding taxes on distributions of dividends regardless of the destination.

22 Illustration : The Spain N.A. route 0% CIT Netherlands Antilles Private Foundation 0% WHT 0% CIT Netherlands Antilles N.V. or B.V. 0% WHT 0% CIT Spanish ETVE 0% WHT WHT: rate of specific tax treaty Treaty Country EU Subsidiary WHT: EC Parent- Subsidiary Directive * As mentioned before, the classic Dutch Sandwich can be optimized by rerouting the flow of dividends. This can also be achieved by transferring the place of effective management of the Dutch B.V. to Spain and apply for the ETVE regime.

23 Curaçao ao Securities Exchange Services: Official name is: Dutch Caribbean Securities Exchange ( DCSX ); DCSX is a market for the listing and trading of securities (shares, bonds, funds) in the N.A.;

24 Curaçao Securities Exchange Services Why listing on the DCSX? Because of the cost efficient and fiduciary services environment Curaçao has ; Because the N.A. is an OECD and FATF accepted jurisdiction; Because the N.A. has a solid regulatory regime following Dutch principles (AFM); Because it makes Curaçao an almost one-stop-shop jurisdiction: Company/fund domiciliation; Management services; Administration and other Legal services; Listing and trading. For more information, please refer to International Listing Delivered

25 What has remained the same? A focus on Curaçao ao The N.A. Private Foundation; The Ship Registry Regime; The Penshonado Regulation (not for BES Islands); The Funds Legislation;

26 The N.A. Private Foundation Highlights: Modeled after the Panama Private Foundation; Introduced in 1998 (oldest P.F. after Liechtenstein and Panama); Contributions into and made by the SPF by nonresidents of the N.A. are tax exempt; The SPF can be converted into a foreign foundation or even into another legal entity, such as a Limited Liability Company; The minimum requirement is Local Representative and address; The SPF offers the possibility to appoint Supervisory Board.

27 Tax Regime for Shipping Sector: The Shipping tax regime was introduced in 1987, and optimized in December 2007; Some of the benefits for a shipping company that resides in the N.A. are:. All types of sea vessels and all carried flags are admissible; Registration in N.A. will give the right to carry the Netherlands flag; The N.A. tonnage tax is applicable to every sea going vessel (everything that floats); Companies that manage ships on behalf of a third party only have to take 1/10 of the taxable profit into account.

28 The Penshonado Regulation: It is a regulation for retirees and persons of independent means who want to establish themselves within the N.A. The regulation offers to those who qualify an attractive tax treatment for their foreign income; The Income Tax Rate applicable on the income of the "penshonado" is 10% and is solely applicable to income from foreign sources; It is also possible to report a fixed income of ANG 500,000 (USD 281,000) at the progressive tax rate; A new regime was introduced in 2009, whereby a non-resident can pay ANG 50,000 per annum, and can be considered a resident of the N.A.

29 The N.A. Funds Legislation: In 2008, Curaçao was, for the second year in a row, named the top location for hedge fund administration by the Global Custodian Hedge Fund Administration Survey; The N.A., due to its location and infra-structure, is often chosen for funds with a South American distribution bias; As a base for funds, a civil law jurisdiction, such as the N.A., has some legal advantages over a common law jurisdiction, since less demanding levels of fiduciary duty are required of directors. Further, derivative shareholder lawsuits are not possible in the N.A.

30 Conclusion: The good became better and the Dutch Caribbean Islands can provide more sustainable solutions in the future. Therefore, it is worthwhile following the developments on these Islands in the coming months; We foresee a bright future for the Dutch Caribbean Islands with sustainable solutions; The Dutch Caribbean Islands will become interesting players in our business again.

31 In 15 years The Dissolution of global operations of the Netherlands Amicorp Antilles gained and a New leading Tax position Planning the Opportunities financial services industry. Amicorp is operating out of 24 offices in 20 countries. Amicorp is closely working together with major banks, law firms, accounting firms worldwide.

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35 Stand out from the crowd January 2008 Thankyou February 2010 Amicorp Switzerland AG Zollikerstrasse 164, 8008, Zurich, Switzerland Tel.: Fax.: