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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

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