International Tax U.K./Netherlands Tax Alert 3 October 2008 New Tax Treaty Signed The U.K. and the Netherlands signed a new tax treaty and protocol on 26 September 2008 that will replace the current treaty, dating from 1980 (and amended twice in 1983 and 1989). The treaty must be ratified by both countries before it can enter into force. Contacts Hans Pijl HPijl@deloitte.nl + 31 (20) 582 4355 Bill Dodwell bdodwll@deloitte.co.uk + 44 (20) 7007 0848 Many of the provisions in the new treaty reflect the 2008 OECD Model Tax Convention: Article 3(2) provides for the domestic law meaning of undefined treaty terms; Article 14 is deleted and independent personal services are now addressed under the permanent establishment (PE) and business profits articles; The capital gains article has been extended by a provision for capital gains from the alienation of certain shares in companies, the value of which is predominantly (in this treaty, 75%) derived from immovable property in the other state; The exchange of information is modeled after the most recent OECD provision, allowing maximum international transparency. Assistance in the collection of taxes is also brought within the scope of the treaty; and Mandatory arbitration may be invoked by a taxpayer to resolve issues where the mutual agreement procedure has failed. The articles on director s fees and artistes and sportsmen have been changed substantially. Residence: Tax-Exempt Bodies Organizations that are partially or wholly exempt from tax traditionally have been a problem in tax treaties. The residence article of the new U.K.-Netherlands treaty resolves certain doubts about treaty access by
including charitable organizations and pension schemes as residents. These organizations, therefore, can obtain benefits of the treaty, such as reduced withholding taxes, etc. Tie-breaker Rule for Companies The new treaty includes a tie-breaker rule, which is similar to the alternative tie-breaker in the 2008 OECD Commentary. The tie-breaker test provides that, where a company is a resident of both contracting states, the residence of the company will be determined by mutual agreement by the competent authorities (the current tie-breaker uses the place of effective management to resolve issues of dual residence). Where mutual agreement cannot be reached, the company will be deemed not to be a resident of either state, and, as a result, will not be entitled to most benefits under the treaty. Arbitration, however, will not be available to resolve issues of corporate dual residence. These changes could create issues for dual-resident companies. The treaty also specifically addresses the residence of a company that participates in a dual listed company arrangement. Where such a company is resident in both states, it will be deemed to be resident only in the state in which it was incorporated (provided the company s primary listing is in that state). A dual listed company arrangement is defined for these purposes as an arrangement whereby two publicly listed companies, while maintaining their separate legal entity status, shareholdings and listings, align their strategic directions and the economic interests of their shareholders by: The appointment of identical or almost identical boards of directors; Managing the operations of the two companies on a unified basis; Equalizing distributions to shareholders in accordance with an equalization ratio, including in the event one or both companies are wound up; Shareholders of both companies generally voting as a single decision-making body on substantial issues affecting their combined interests; and Arrangements for cross-guarantees as to, or similar financial support for, each other s material obligations or operations. Collective Investment Vehicles (CIVs) The 2008 OECD Commentary contains new paragraphs on Real Estate Investment Trusts and the Commentary for 2010 is expected to have new commentaries on CIVs in general. The application of tax treaties to CIVs is a common problem: like pension schemes, CIVs often are not subject to tax on part (or all) of their income, profits or gains. The protocol to the new U.K.-Netherlands treaty includes a paragraph that
allows the competent authorities to put in place arrangements to grant treaty access at the request of the investment fund. Dividends Subject to the normal beneficial ownership criterion: Non-real estate investment vehicles No dividend withholding tax is due where the recipient is a company owning at least 10% of the voting power in the paying company or where the recipient is a pension scheme, or charitable organization; and 10% tax is due on dividends paid to individuals or companies (the latter owning less than 10% of the voting power in the paying company). Under the existing treaty, the lowest rate of withholding tax is 5%. However, subject to meeting the necessary conditions, this can be reduced to zero by application of the EC Parent-Subsidiary directive. Real estate investment vehicles A 15% withholding tax will be applied to dividends paid by real estate investment vehicles, except for dividends paid to pension schemes and charitable organizations which will be exempt. To safeguard the Dutch position, the protocol clarifies that income received in connection with the liquidation of a company or a repurchase of shares will be treated as income from shares rather than capital gains. This paragraph probably tries to eliminate the effect of a 2003 Dutch Supreme Court decision in which the Court held that, under the Netherlands-Belgium tax treaty, the Netherlands could not levy dividend withholding tax on the repurchase of shares. In addition to the beneficial ownership clause, the dividends article contains a general anti-abuse provision triggered where the main reason for the insertion of the recipient is the reduction of the withholding tax. A similar provision is included in the interest, royalty and other income articles. Interest and Royalties: Triangular Cases The protocol contains a clause that will deny the reduced rates of withholding tax on interest and royalties where the income is paid to a low-taxed (i.e. less than 60% of the Dutch tax) PE of a Dutch resident and where the Netherlands would exempt such income. In such cases, the U.K. would not be obliged to reduce its domestic withholding taxes.
Capital Gains Article 13(6) is a typical clause in Dutch tax treaties. Under Dutch law, individuals owning 5% or more of the shares in a company are subject to a 25% income tax on capital gains. The treaty allows the Netherlands to retain this taxing right even after an individual emigrates, although the minimum shareholding is increased to 20%. Elimination of Double Taxation The Netherlands will, in certain narrowly defined finance PE situations, only grant a tax credit, rather than an exemption. Fiscally Transparent Entities The new treaty contains specific provisions to deal with fiscally transparent entities. In particular: The treaty does not preclude the taxation of partners in their state of residence on their shares of income, profits or gains of a partnership established in the other state; If a resident derives income, profits or gains through a fiscally transparent entity, and this is treated as their income, profits or gains for tax purposes, it will be considered to be derived by that person for the purposes of applying the treaty. A similar provision is found in the U.K.-U.S. tax treaty, and was introduced to deal with, in particular, U.S. limited liability companies, that may otherwise not have qualified for treaty benefits. In cases where the same income, profits or gains is considered to be derived by a person(s) in both states, the treaty does not prevent taxation in both states. This could be applicable, for example, in the case of entities that are viewed for tax purposes as opaque in one state and transparent in the other; and Where income, profits or gains are not treated as such for tax purposes, but would have been exempt from tax if they had been, the competent authorities may still grant treaty benefits.
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