Налоговая система Нидерландов

for ten years upon a request filed by the tax payer, in wich the tax payer

states the relevant factual circumstances. The Dutch tax inspector can

impose additional conditions.

3.2.8. Investment allowance

This scheme allows a certain percentage of the sum invested in fixed assets

in a particular year to be deducted when calculating the taxable profits.

Investments are divided into nine tranches, where the percentage of the

allowance decreases with increase in investment. In 1999 the lowest tranche

is applicable to investments between NLG 3,900 and NLG 65,000, and the

highest tranche is applicable to investments between NLG 503,000 and NLG

566,000. The corresponding percentages are 27% and 3% respectively. Certain

fixed assets are excluded from the investment allowance. If fixed assets

for which an investment allowance was obtained in the past are sold within

five years of being purchased then the investment allowance is withdrawn

either wholly or in part.

Furthermore, there is an investment allowance in respect of investments in

energy saving business assets, placed on an Energylist. For investments

over NLG 3,900 up to NLG 65,000 the allowance is 52%. The percentage of the

allowance declines as the amount of the investment increases. The maximum

allowance is 40% of NLG 208 mln.

3.2.9. Education allowance

This scheme allows an additional percentage of the costs of education of

employees to be deducted when calculating the taxable profits. The

percentage of the allowance varies between 20% and 80%.

3.2.10. Tax-deductible donations

Within certain limits donations to religious, ideological, charitable,

cultural or academic institutions or other bodies serving the public good

are tax-deductible. The donations must be more than a total of NLG 500. The

maximum deduction is 6% of the profits.

3.2.11. Offsetting of losses

A loss may be offset against the taxable income of the three preceding

years (carry back) and against taxable income of all years to come (carry

forward).

If a corporation discontinues its business either wholly, or in part, then

any losses that have not been offset may be compensated with future

profits, provided that at least 70% of its shares continue to be held by

the same natural persons

3.3. Participation exemption

3.3.1. General

The Corporation Tax Act has always provided for a participation exemption,

which is applicable to both domestic and foreign shareholdings. This

exemption is one of the main pillars of the Dutch Corporation Tax Act, and

it is motivated by the desire to prevent double taxation when the profits

of a subsidiary are distributed to its parent company which is also liable

to corporation tax. The main features of this scheme are as follows: all

gains from shareholdings are exempted, the costs associated with a

shareholding are not deductible, and losses arising from liquidation of the

corporation are deductible only under certain conditions. The corporation

distributing dividends does not have to pay dividend tax if the

distribution of profits falls under the participation exemption enjoyed by

the company receiving the dividend.

The most important elements are as follows.

3.3.2. Shareholdings

The participation exemption is applicable to both domestic and foreign

shareholdings. A shareholding is deemed to exist if the taxpayer:

1. holds at least 5% of the nominal paid-up capital (a shareholding

includes the related possession of 'jouissance' rights); or

2. holds less than 5%, but ownership of the shares is part of the normal

business conducted by the taxpayer, or the acquisition of the shares

served a general interest; or

3. is a member of a cooperative; or

4. holds at least 5% of the share certificates in a mutual fund based in

the Netherlands.

The participation exemption is not applicable if the taxpayer or subsidiary

company is a fiscal investment institution. The concept of an investment

institution is explained in section 3.6. The participation exemption is not

applicable when the shares are held as stock.

The participation exemption does not apply internationally when shares in

the foreign corporation are held as a portfolio (passive) investment.

Another requirement for the exemption to be granted is that the foreign

company in which the shares are held is subject to a tax on profits levied

by the central government in the country in which it is established (see

also 3.3.7.). Furthermore, the participation exemption is not applicable

for participations in foreign 'passive' finance companies.

In principle a Dutch company cannot credit any foreign withholding tax on

dividends received from foreign subsidiaries to which the participation

exemption is applicable. However, the Dutch dividend tax which has to be

transferred by the Dutch company in the event of the redistribution of

foreign dividends received can be partly reduced, subject to certain

conditions. The reduction amounts to a maximum of 3% of the foreign

dividends received.

3.3.3. Gains

Gains from shareholdings are ignored when calculating the profits. In

principle the term 'gains' includes both profits and losses. Profits, of

course, include both official and disguised dividends received. Exempted

gains also include profits made by the sale of a participation (including

exchange rate differences). Since January 1997, it is possible to opt for

application of the participation exemption to currency results arising from

financial instruments which are used to hedge the translation risks on

investments in foreign subsidiaries. Accordingly losses from sales are not

deductible. If the participation declines in value as a result of losses

suffered, then a write-off by the parent company is in principle non-

deductible. An important exception is losses resulting from liquidation

(see 3.3.6.).

However, since January 1997 a company may claim a tax deduction for start-

up losses of a subsidiary, in which it holds at least 25% of the share-

capital. The rules allow the parent company to depreciate the book value of

the subsidiary in the first 5 years after the acquisition if and to the

extent that the value of the subsidiary has declined below cost price. When

the subsidiary becomes profitable, a taxable appreciation has to be made up

to the amount of the cost of the investment. To the extent the depreciation

has not been reversed during the first 5 years, the balance will then have

to be reversed in the next 5 years in equal steps.

If the depreciated debts of a subsidiary to a parent company are converted

into share capital then a special provision prevents tax claims being lost.

In such cases an amount equal to the depreciation of the debt is, in

principle, again regarded as part of the profits of the parent company.

This is also applicable when the debt is sold to an affiliated company or

if it is discharged.

3.3.4. Costs

Shareholdings may give rise to costs as well as gains. In principle such

costs are not deductible. However an exception is made when these are

indirectly conducive to making profits taxed in the Netherlands. With

foreign shareholdings this may occur if the foreign subsidiary has a

permanent establishment in the Netherlands. In practice the main non-

deductible costs are the costs of financing the participation. The taxpayer

must also show that the costs are conducive to making domestic taxable

profits.

3.3.5. Converting a permanent establishment into a subsidiary

As losses incurred by foreign subsidiaries cannot be offset against profits

made by the Dutch parent company, foreign activities from which profits are

not directly expected are often undertaken through a permanent

establishment. Foreign losses can then be directly deducted from the

profits of the Dutch company. To prevent losses being deducted from the

profits in the Netherlands whilst later profits in this country are not

taxed, it is stipulated that when a permanent establishment is converted

into a subsidiary then the profit made by the subsidiary up to the amount

of the losses deducted from the Dutch profit is not exempted from taxation.

This obligation to compensate profits made by a subsidiary with earlier

losses incurred by the permanent establishment is applicable to the eight

years preceding the conversion, and is subject to the condition that the

losses have not been offset against other foreign profits.

3.3.6. Losses resulting from liquidation

In principle losses from participations cannot be taken into account by the

parent company. An exception is those losses resulting from liquidation.

The liquidated subsidiary cannot be compensated for these losses in the

future. For this reason these losses may be taken into account by the

parent company, under certain conditions, in the year in which the

liquidation of the subsidiary is completed. The loss resulting from

liquidation is the difference between the liquidation payments and the sum

paid to acquire the participation (the 'sacrificed amount'). Special rules

apply if a tax deduction has been claimed for this participation (see

3.3.3.).

There are additional requirements for taking account of the losses

resulting from the liquidation of foreign participations. One requirement

is that the holding must be at least 25%, and that it must have been held

during the five years preceding the discontinuation of the subsidiary's

business, the year of discontinuation itself, and during subsequent years

in which liquidation payments are received. In addition no loss resulting

from liquidation can be taken into account if the participation was

obtained from a foreign associated company when the operations concerned

are discontinued within three years.

3.3.7. Directive on parent companies and subsidiaries

In 1992 Dutch legislation was amended in line with the EU directive on

parent companies and subsidiaries. The relevant Act has a retroactive

effect from 1 January 1992. The participation exemption has been extended

in several respects. For example an investment in a company established in

another EU member state can be regarded as a participation covered by the

participation exemption. For this purpose a shareholding of at least 25% is

required. The possession of at least 25% of the voting rights in a company

can also be regarded as a participation under certain conditions, even if

the shareholding is less than 5%. Under this Act dividend tax is not levied

on dividend paid to a company established in another member state when the

company has an interest of at least 25% in the company paying the dividend.

This act was further amended in 1994 in order to give the exemption of

dividend tax a wider application than the EU directive. If certain

conditions are met then the exemption now becomes applicable when the

shareholder has an interest of at least 10% in the company's capital, or

holds at least 10% of the voting shares.

3.4. Fiscal unity; consolidation for tax purposes

Under certain conditions a parent company may form a fiscal unity with one

or more subsidiaries. For corporation tax purposes this means that the

subsidiaries are deemed to have been absorbed by the parent company. The

main advantages of fiscal unity are that the losses of one company can be

set off against profits from another company, and that fixed assets can be

transferred at book value from one company to another.

This type of tax consolidation is possible only between a parent company

and its wholly owned subsidiaries (in practice 99% is sufficient) when all

the companies involved in the consolidation are established in the

Netherlands. Other conditions are that the parent company and the

subsidiaries have the same financial year, and are subject to the same

taxes. A request to form a fiscal unity must be submitted to the Inspector

on behalf of all the companies involved. The standard conditions drawn up

by the Minister of Finance must be met. These conditions cover a large

number of technical aspects involved in consolidation.

The fiscal unity can be terminated upon request, or will be terminated

automatically if any of the conditions are not met.

Since January 1997 new regulations apply to leveraged acquisitions, in case

a leveraged Dutch acquisition vehicle is used to acquire a Dutch operating

company. The aim of these regulations is to prevent the acquisition vehicle

to form a fiscal unity with the target company in order to offset its

interest expenses against the profits of the operating (target) company. In

principle, following to the new fiscal unity rules these (interest)

expenses are disallowed (for a period of eight years) to be offset against

the profits of the target company.

3.5. Investment institutions

3.5.1. General

Subject to certain conditions Dutch-based public companies, private

companies and mutual funds may apply for recognition as investment

institutions for taxation purposes. An investment institution can request

to pay corporation tax at 0%. The purpose of this system is to ensure that

persons investing in an investment institution shall not receive a less

favourable treatment than persons who invest directly. This would not be

the case without a special scheme.

As stated in section 3.3.2. an investment institution does not qualify for

the participation exemption, whether it be a parent company or a

subsidiary.

3.5.2. Conditions

Several conditions must be met before an organisation may be regarded as a

fiscal investment institution. These conditions include the way in which

the investments are financed, the distribution of the investment returns,

and the ownership of shares in the investment institution. The main

conditions are:

. up to 60% of the book value of the immovable property may be financed

with borrowed capital. For other investments the limit is 20% of the book

value;

. the profits must be distributed within eight months of the close of the

financial year;

. when the investment institution is listed on the Amsterdam Stock

Exchange, less than 45% of the shares may be held by a corporation liable

to corporation tax or several associated corporations (parent,

subsidiary, or sister corporations with interests of a third or more in

each Mother), unless the corporation is another listed investment

institution;

. when the investment institution is not listed on the Amsterdam Stock

Exchange then at least 75% of the shares must be owned by individuals,

corporations not liable to profits tax, or listed investment institutions

which meet the above condition;

. less than 25% of the shares in the investment institution may be held

indirectly by Dutch shareholders via foreign-based corporations;

. less than 25% of the shares in the investment institution may be held

directly by a single foreign shareholder.

3.5.3. Reserves

Institutions are allowed to form two special fiscal reserves, the

reinvestment reserve and the rounding-off reserve. The reinvestment reserve

is formed by non-distribution of capital gains. The level of the annual

contribution to the reserve and its absolute size are both subject to

restrictions. If, when establishing the amount of the profit to be

distributed, an amount remains due to sums being rounded off then this

amount may be added to the rounding-off reserve. The rounding-off reserve

may not exceed 1% of the paid-up capital.

3.5.4. Allowance for foreign withholding tax

Under Dutch law and Dutch tax conventions withholding tax levied abroad may

generally be set off against income or corporation tax payable by the

taxpayer in the Netherlands. As an investment institution is liable for

corporation tax at a rate of 0% it cannot make use of this facility. To

ensure that persons who invest directly and persons who invest via an

investment institute receive equal tax treatment, special arrangements are

made for investment institutions allowing the former to offset foreign

withholding taxes against income from securities and claims. Under these

arrangements an investment institution may obtain an allowance from the

Dutch tax authorities which amounts to no more than the withholding tax

levied abroad. If not all the shareholders in the investment institution

are resident or established in the Netherlands then the allowance is

calculated according to the number of shareholders resident or established

in the Netherlands.

4. Подоходный налог(Income Tax)

4.1 Taxpayers: residents and non-residents

Under the present Income Tax Act residents are liable for income tax on

their world-wide income. Non-residents are taxed only on the income from a

limited number of sources in the Netherlands. The Netherlands has concluded

a large number of double taxation conventions to prevent the double

taxation of world-wide income. If no convention is applicable, tax relief

may be obtained on the basis of the Unilateral Decree for the prevention of

double taxation. (If certain requirements are met, foreign employees

temporarily posted to the Netherlands may request the application of a

special tax arrangement known as the 35% rule, see 4.4.)

The legal definition stipulates that a taxpayer's place of residence is

determined 'according to circumstances'. Several factors are of relevance

when deciding whether the taxpayer maintains personal and economic ties

with the Netherlands. These include a family home, employment, or

registration in a municipal register. Nationality is not a determining

factor, but it may be relevant in some cases. The law also provides for a

number of special cases. The crews of ships and aircraft with a home

harbour or airport in the Netherlands are deemed to be residents of the

Netherlands unless they have established residence abroad. Dutch diplomats

and other civil servants serving abroad remain residents of the

Netherlands. Foreign diplomats and the staff of certain international

institutions are exempt from Dutch income tax.

If both spouses are resident in the Netherlands then married couples are

taxed individually on their personal income (business profits, salary,

pension, etc.) less certain deductions, allowances and premiums. Investment

income and non-source related deductions such as certain personal

obligations and exceptional expenses are attributed to the spouse with the

highest personal income. If only one of the spouses is resident in the

Netherlands then their incomes are regarded as completely separate.

4.2 Taxbase and rates

4.2.1. Taxable income of residents

The tax year for persons is the calendar year. Residents are taxed on their

total gross income, which is the income from all domestic and foreign

sources less the associated expenses. This income may be further reduced by

certain deductions and allowances not directly related to a specific source

of income. The balance is the total net income. This total net income is

further reduced by the deduction of losses and a personal allowance before

tax is levied. The result is the taxable amount, which is calculated as

shown below. The various terms are explained in sections 4.2.3 and 4.2.4.

|GROSS INCOME (4.2.3): | | |

|profits from business or | |............ |

|professional activities | | |

|income from a substantial holding | |............ |

|net income from employment and | |............ |

|services rendered outside employment| | |

|net income from capital | |............ |

|net income in the form of periodic | |............ |

|payments | | |

| | |______ |

| | |+ |

|TOTAL GROSS INCOME |(A) |............ |

|MINUS: DEDUCTIONS (4.2.4): | |............ |

|contribution to the old-age reserve | |............ |

|the self-employed persons' deduction| |............ |

|business-assistance deduction | |............ |

|personal obligations (special | |............ |

|expenses) | | |

|exceptional expenses | |............ |

|tax deductible donations | |............ |

| | |______ |

| | |+ |

| |(B) |............ |

|TOTAL NET INCOME |(A-B) | |

|minus: deductible losses |(C) | |

|TAXABLE INCOME |(A-B-C) | |

|minus: personal allowances |(D) | |

|TAXABLE AMOUNT |(A-B-C-D) | |

4.2.2. Tax rates and personal allowances

Income tax is levied on the taxable amount calculated as shown above. This

is a progressive tax. The rates are:

|33.90 |on the first |NLG 15,255 |

|37.95% |on the next |NLG 33,739 |

|50% |on the next |NLG 58,762 |

|60% |on the remainder | |

The 33.90% rate is comprised of 4.5% tax and 29.40% social security

contributions, the second rate is comprised of 8.55% tax and 29.40% social

security contributions, whilst the 50% and 60% rates consist solely of tax.

A rate of 16% (first rate) and 20.05% (second rate) is applicable to

persons aged 65 and over, as they are no longer liable for several social

security contributions.

The above diagram shows that a personal allowance is deducted from the

total net income before tax is levied. The level of this allowance is

determined by the tax class to which the person is assigned. This level

depends on the individual circumstances. The basic personal allowance is

NLG 8,950. For married or single persons with a spouse or partner without

an income the personal allowance is NLG 17,473. For single parents with

children living with them the allowance is NLG 15,768. For single parents

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