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.
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De KPMG Belgium-Holland Desk nieuwsbrief verschijnt maandelijks met uitzondering van juli en augustus. In deze nieuwsbrief gaan wij in op actuele ontwikkelingen op fiscaal gebied in Nederland en Belgi ...
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.
In practice, large amounts in dividend tax are avoided via various forms of dividend stripping, which the Dutch tax authorities cannot properly combat with the legal instruments currently available to ...
In particular, the Supreme Court answered several outstanding questions about Section 10a Corporate Income Tax Act 1969, such as when is there an ‘intra-group (non-business motivated) diversion’.