When Multinational enterprises desire to expand their footprint in Europe, they might take the Netherlands as their first stop and then expand their business across Europe with Dutch entities as their European headquarters and/or holding companies for tax and non-tax purposes, including logistics, talent, and infrastructure.

However, if multinational enterprises only focus on the opportunity to enjoy the exemption of Dutch withholding tax on dividend distribution from Dutch B.V. to foreign entities, there will be a great potential tax risk because the application to reduced dividend withholding tax rate is under layers of specific conditions.

In practice, to create more beneficial tax consequences, companies might consider not distributing a great amount of dividends to their corporate shareholders and distributing them shortly after finishing their company restructuring. Under this situation, a technical term called dividend stripping describes this circumstance in Dutch tax law. More importantly, there is anti-dividend stripping rules in Dutch tax law and many relevant case laws to this topic.

This article is written by Wogan Chang ([email protected]) and Dick Brinkhof ([email protected]). Wogan and Dick are part of RSM Netherlands International Tax Services with a focus on Corporate Income Tax.

To build foundational Dutch dividend withholding tax knowledge, the multinational enterprise should understand that the Dutch withholding tax rate defaults to 15%. Reduced Dutch withholding tax rate is applicable when taxpayers meet specific requirements. Notably, the Dutch tax authority will also scrutinize the applicability of reduced Dutch withholding tax rates.

In order to avoid potential tax risk, there are several factors that multinational enterprises should take into consideration when distributing dividends. First of all, the shareholders of dividend-distributing companies, as the direct beneficiaries, are in principle regarded as the beneficial owners of the dividend if they can freely dispose of it and do not act as agents or nominees. However, an exception to this principle is made by the statutory measure against dividend stripping in various Dutch laws.

Secondly, in the situation which the dividend still ends up with the original beneficiary of the dividend after restructuring, there will be a great potential tax risk when there is a consideration received by the dividend stripping entity as a remuneration for the dividend expected on the shares. This situation is explicitly stated in the Dutch Dividend Withholding Tax Act 1965 and easily trigger the anti-dividend stripping clauses, meaning that the recipient companies might not be regarded as a beneficial owner of the dividend and therefore the reduced withholding tax rate will not apply. We refer to our earlier article “Een interpretatie van het begrip "begunstigde eigenaar" naar aanleiding van de Canadese Husky Energy-zaak | Netherlands”

Besides the beneficial ownership of dividends, we should also consider anti-abuse rules. The company should be able to show there is solid business reasoning for establishing the intermediary company between Dutch entities and parent entity if applicable, showing that there is no artificial arrangement solely for tax purposes. Regarding this issue, the Dutch interpretation of these rules will focus on the substance of receiving companies, meaning that the receiving companies should conduct an active business with a certain number of employees and office space. 

In other words, multinational enterprises should ensure sufficient substance in the recipient company and that the use of pure holding companies should be avoided as much as possible when reorganizing the company structure.  

Forward Thinking

In summary, multinational enterprises should focus on more than just benefiting from the reduced Dutch withholding tax through tax treaties or domestic law. Remember, the defaulted Dutch withholding tax rate is 15%. They must also recognize that the reduced rate applies only under specific conditions, such as the absence of a legal obligation to redistribute, the economic substance of the recipient company, and valid business reasons (among others). 

In addition, there are no absolute conditions the taxpayers meet to guarantee the applicability of a reduced tax rate. Therefore, when considering a dividend distribution, evaluating all relevant facts and circumstances and reviewing the current state of domestic and international tax laws and case law before deciding is essential.

RSM is a thought leader in the field of Dutch Corporate Income Tax. We offer frequent insights through training and sharing of thought leadership based on a detailed knowledge of industry developments and practical applications in working with our customers. If you want to know more, please contact one of our consultants.