Draft Bill introducing conditional source tax on dividend payments

29/03/21

On March 25, 2021, the Bill introducing a conditional withholding tax on dividends was submitted to the Lower House of Parliament. The Conditional Withholding Tax on Dividends Act supplements the 2021 Withholding Tax Act and aims to prevent the untaxed flow of dividends from the Netherlands to low-tax jurisdictions and in abuse situations.

Low-tax jurisdictions are countries with a statutory profit tax rate lower than 9% and countries included in the EU list of non-cooperative jurisdictions.

The Bill will enter into force on January 1, 2024.

What does this mean for your organization?

If the House of Representatives, and later also the Senate, approves the Bill introducing the new withholding tax, this will have consequences if your company pays dividends to shareholders:

located in low-tax (less than 9% corporate income tax) countries, or
located in jurisdictions included in the EU list of non-cooperative jurisdictions.

The Netherlands will then levy a withholding tax on these dividend payments with effect from 2024, even if it has concluded a tax treaty with the relevant countries.

Purpose of the Bill

The purpose of the Bill is to prevent the flow of dividends from the Netherlands to low-tax jurisdictions without taxation and in abuse situations. The existing dividend tax already contains various anti-abuse provisions, but according to the Dutch Cabinet these are insufficient to combat all situations of improper use. According to the Explanatory Memorandum accompanying the proposed Bill, the purpose of the new withholding tax on dividends - but also of the existing conditional withholding tax on interest and royalties - is “to prevent the Netherlands from being used any longer as a gateway to low-tax jurisdictions and to reduce the risk of tax avoidance by shifting the (Dutch) taxable base to low-tax jurisdictions ”. In addition, the new tax also concerns countries that are on the EU list of non-cooperative jurisdictions. One should consider, for example, countries that do not exchange data with other countries or do not provide assistance for tax purposes.

Which situations are concerned?

The proposed measures are specifically aimed at two situations in which currently no dividend withholding tax is levied.

Intra-Group Dividend Payments

When an intra-group dividend is paid to an entity established in a low-tax or non-cooperative jurisdiction with which the Netherlands has concluded a tax treaty, (regular) dividend tax may not be levied. In participation situations, it is therefore usually possible to invoke a withholding exemption. In situations where an intra-group dividend is paid to a low-tax country or a jurisdiction included in the EU list of non-cooperative jurisdictions, the Bill allows the Netherlands to levy a new withholding tax on this dividend payment.

Non-holding cooperatives

In the past, the legal concept of cooperative was also used instead of (public or privately held) companies, partly because cooperatives were generally not subject to dividend tax. With respect to dividend tax, it has recently been provided for so-called ‘holding cooperatives’ whose profit distributions can be taxed with dividend tax (cf. holding companies).

However, non-holding cooperatives are still not subject to dividend tax. When a non-holding cooperative distributes dividends to an entity established in a low-tax or non-cooperative jurisdiction with which the Netherlands has concluded a tax treaty, no (regular) dividend tax is therefore levied. According to the proposed Bill, a withholding tax will be levied on profit distributions by non-holding cooperatives if these profit distributions are made to a low-tax country or a jurisdiction included in the EU list of non-cooperative jurisdictions.

Withholding Tax on Dividends and Dividend Tax

The withholding tax on dividends will be a new tax that will exist next to the current dividend tax. These can therefore be levied simultaneously, although an anti-accumulation scheme can apply (please see below).

Taxable base

The taxable base for the conditional withholding tax on dividends is the same as for the "regular" dividend tax. Withholding tax is levied on the proceeds of shares, profit-sharing certificates and certain cash loans. The proceeds include dividends, payments on the repurchase of shares (other than for a temporary investment) and on liquidation of the company, which is paid in excess of the average paid-up capital on the shares concerned.

Method of taxation and tax rate

For the proposed dividend withholding tax, the dividends are deemed to have been received at the time they are made available to the beneficiary. This is in line with the "regular" dividend tax. Unlike the dividend tax, the distributing body or non-holding cooperative must pay the tax withheld no later than one month after the end of the calendar year, in accordance with the tax return. The final date for filing the return and payment of the withholding tax will therefore always be January 31 of the following year (dividend tax must be withheld and paid within one month of the dividend being made payable).

The rate of conditional withholding tax on dividends is equal to the highest rate of corporate income tax (currently: 25%).

Anti-cumulation with dividend tax

In some situations, both dividend tax and the new withholding tax on dividends may be levied. In order to prevent a possible accumulation of these two taxes, the Dutch government has included in the Bill the option of crediting the dividend tax against the conditional withholding tax. If a dividend payment is subject to withholding tax at the current highest corporate income tax rate of 25%, as well as dividend tax at the regular rate of 15%, the 15% dividend tax will be deducted from the 25% withholding tax. In essence, there is still 10% withholding tax to be withheld and paid.

Accumulation of the dividend tax and the conditional withholding tax on dividends may, for example, occur in the event of a dividend distribution by a Netherlands resident enterprise to an enterprise established in a low-tax jurisdiction, not being a treaty country.

Relationship with double tax treaty countries

It is possible that the Netherlands has concluded a double tax treaty with a low-tax jurisdiction. In order to give the Netherlands and its treaty partners the opportunity to start (re)negotiations before the position of taxpayers changes, the Withholding Tax Act 2021 has opted to include a provision that ensures that interest and royalty payments to affiliated enterprise established in low-tax will not be subject to the withholding tax until three calendar years have elapsed after the first designation in the ministerial regulation of the relevant contracting state as a low-tax jurisdiction. A similar arrangement is proposed for the conditional withholding tax on dividends. For dividend payments to low-tax treaty states that are included in the ministerial regulation as it reads on 1 January 2021, this means that these states will also fall under the scope of the 2021 Withholding Tax Act as of 1 January 2024. With regard to contracting states that are included in the ministerial regulation on 1 January 2022 or later, the three-year period starts at the moment when the ministerial regulation in which the treaty country is first included enters into force.

Anti-abuse provision and hybrid entities

In line with the anti-abuse provision in the Withholding Tax Act 2021, which already applies to certain interest and royalty payments, the conditional withholding tax on dividends - in addition to the above situations - also applies to artificial structures intended to avoid Dutch withholding tax on dividends. The anti-abuse provision is applied in the same way.

In addition, the provisions in the Withholding Tax Act 2021 that relate to the tax liability of hybrid entities apply mutatis mutandis to dividends.

What is notable?

The rate of the conditional withholding tax on dividends will be considerably higher than the regular dividend tax rate, i.e. 25% (the highest applicable corporate income tax rate) compared to 15%;
The proposed Bill does not contain a rebuttal rule for non-abusive cases in which an enterprise that happens to be established in a low-tax jurisdiction invests in the Netherlands;
The withholding tax on dividends cannot be credited against Dutch corporate income tax that may be payable by the shareholder in situations of foreign tax liability in the Netherlands (for example on the basis of the rare situation of a technical substantial interest).