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.
The preliminary ruling shows that, for ‘essentially a new building’ to have been created, there must have been alterations to the structural construction as a minimum.
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.
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.
The most important changes are the incorporation of the results of the OECD’s BEPS project and the source exemption that was introduced into the Corporate Income Tax Act 1969 in 2012.
The changes to the Decree are mainly a reaction to the changes made to the OECD guidelines in respect of financial transactions, intra-group services and recent OECD publications on the treatment of g ...
The new Dutch Transfer Pricing Decree was published on July 1, 2022. The new decree focuses on recent developments that have resulted in changes to the OECD Transfer Pricing Guidelines but also ...
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.