Important judgment on tax classification of financial instrument

On May 17, 2024 the Dutch Supreme Court rendered an important judgment on the tax qualification of a financial instrument that was issued by a company established in France in 2007. It concerned the ‘obligation remboursable en actions’ (hereinafter: ORA). The question was whether the instrument had to be regarded as equity (capital) or debt capital (loan) for the purposes of the Corporate Income Tax Act 1969. Although the dispute focused on the question whether the costs related to the issue of the instrument were allocable to a Dutch permanent establishment of the French company, the Supreme Court judgment potentially has a much broader scope.

Newsoverview (138)

CESOP: as of 2024 cross-border payments must be reported for VAT purposes; bill presented to Lower House of Parliament

October 26, 2022

Virtually all of the EU rules on this have become an integral part of the bill that was presented to the Lower House of Parliament on October 24, 2022.

The 2023 Tax Plan on two pages

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We have prepared a two-page overview of the measures contained in the 2023 Tax Plan package.

Tax measures for 2023

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The main features of the proposed measures are addressed in our memorandum. We have also prepared a two-page overview of the measures.

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Although the judgment was what was expected, we nevertheless have several reservations about the way in which the Court of Justice of the European Union arrived at its ruling.

Change to policy statement on VAT fixed establishments

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Because of this change, cross-border transactions within a legal entity may be subject to VAT if this entity is a member of a VAT group in a country.

Policy statement on Box 3 restoration of rights

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The policy statement sets out how rights will be restored in Box 3 and how the new Box 3 income will be calculated according to the flat rate savings option.

Temporary reduction in excise duties on fuel and VAT on energy

June 30, 2022

The Dutch Senate passed the Act on Additional Tax Measures to Increase Purchasing Power 2022 on June 28, 2022.

Transfer of leased building by developer classified as transfer of going concern for VAT purposes despite earlier decision

May 31, 2022

The Arnhem-Leeuwarden Court of Appeals delivered two important rulings for the Dutch real estate practice on May 17, 2022.

Supreme Court rules on ex officio reduction and settlement of Box 3 class action

May 20, 2022

The tax inspector will not have the obligation to grant ex officio reductions for non-litigants.

Restoration of rights and Box 3 transitional legislation

April 29, 2022

The letter sent to the Lower House of Parliament on April 28, 2022 explains which option for restoring rights will be offered and which group of taxpayers will, for the time being, be eligible for thi ...

Box 3: restoration of rights, the future and pending legal proceedings

April 15, 2022

On Friday, April 15, 2022 Deputy Minister of Finance, Mr. Van Rij, sent two letters about Box 3 to the Lower House of Parliament.

Group company not a fixed establishment for VAT purposes, but CJEU has left the door open

April 11, 2022

The CJEU provided more guidance on the circumstances in which the human and technical resources of an independent legal entity could result in a separate fixed establishment.

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