On September 10, 2015 the Lower House approved the new bilateral rules for the avoidance of double taxation between the Netherlands – including its Caribbean territories (i.e. Bonaire, Saba and Sint Eustatius) – and Curaçao (Belastingregeling tussen Nederland en Curaçao; “BRNC”). The BRNC contains significant changes in relation to the Tax Arrangement for the Kingdom of the Netherlands (Belastingregeling voor het Koninkrijk; “BRK”), with transitional rules for some elements. The new tax arrangement must now be approved by the Upper House. The BRNC is intended to govern the relationship between both countries as of January 1, 2016, thereby replacing the BRK. This will require the Upper House to give its approval on time so that the BRNC can be published in the Bulletin of Acts and Decrees (Staatsblad) before November 1, 2015.

Our memorandum on the main features of the BRNC was published in June 2014. As a result of several changes made during the Parliamentary proceedings in the Lower House, we would like to draw your attention to the following.

Corporate tie-breaker

In the case of entities with dual residence, the state of residence for the purposes of the BRNC will be determined in mutual consultation between the two countries. This will also involve an examination of the tax motivation for the relocation of the entity. Other relevant factors to be examined include the place where the senior management is performed, the place where board meetings are held and the place where the head office is located. The place of effective management will not, however, necessarily be decisive. If no agreement can be reached, the entity can request arbitration, which will be binding on both countries. For existing situations, where facts and circumstances remain unchanged, the state of residence will not change from what it is for the purposes of the BRK.

Pensions

The source state may in future levy a maximum of 15% tax on the gross amount of regular private pension and annuity benefits. This tax is, in principle, creditable in the state of residence. This does not apply to Dutch nationals already receiving private pensions and annuities and who are resident in Curaçao: they will only be subject to tax in the state of residence. This transitional rule will also apply in reverse; i.e. to individuals already receiving a Curaçaon pension or annuity and who are resident in the Netherlands. Capping does, however, not apply in the case of surrender.

The changes resulting from the implementation of the BRNC may be reason for you to quickly seek advice about any steps you need to take. Our tax advisors would be pleased to help you with this.

Click here to download the memorandum in pdf format