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Type of (regulatory) Funds
Four categories should be distinguished when discussing the regulatory aspects of funds: (i) Undertakings in Collective Investments in Transferable Securities (“UCITS”), (ii) funds from the jurisdiction with adequate supervision, (iii) non-UCITS retail funds, and (iv) exempt funds.
Exempt funds Dutch law provides exemptions on the license requirements for investment funds which satisfy one or more of the following conditions:
• The fund only markets to ‘qualified investors’ (i.e., inter alia entities which have a license or are otherwise regulated to be active on the financial markets, large corporate entities, governmental bodies, international and supranational organisations, certain other institutional investors and certain high net worth individuals).
• The fund is marketed to a maximum of 99 non-qualified investors.
• The shares or units of the fund have a minimum denomination of € 50,000 or can only be acquired against a minimum consideration of € 50,000. Please note that these threshold amounts will each be increased to € 100,000 as of 1 January 2012, pursuant to an amendment of the Dutch Financial Supervision Act.
Both Dutch funds and non-Dutch funds which are marketed to investors in the Netherlands can rely on the above exemptions. If units or shares are offered on the basis of such an exemption, specific selling restrictions and standardised mandatory warnings (the so-called “Wild West Warning”) may be required. When applicable these have to be inserted in the fund documentation, prospectuses and marketing materials. The voluntary supervision regime Certain institutional investors are limited to investing in regulated funds pursuant to their investment restrictions.
From a commercial point of view, it may, therefore, be useful for fund managers to be subject to some level of (governmental) supervision. As described above fund managers do not require a license from the AFM, and are therefore not subject to its supervision, if the units or shares in their funds are offered exclusively to qualified investors. Pursuant to an amendment to the of the Dutch Financial Supervision Act, such managers may opt into voluntary supervision by the AFM. As a consequence, the manager obtains a written declaration from the AFM that it is subject to its supervision. The manager is consequently required to comply with a regulatory light regime.
This light regime includes, amongst others, minimum requirements on own capital, liquidity, reliability and experience of the management and the organisation of the business. The AIFM Directive The European Alternative Investment Fund Managers Directive requires attention as this will materially reshape the legal framework applicable to the managers of all non-UCITS funds domiciled or marketed in Europe.
The directive has entered into force on 21 July 2011 and has to be transposed into Dutch law no later than 22 July 2013. The directive regulates the managers of non-UCITS funds, including hedge funds, private equity funds and real estate funds, if the assets managed by such manager exceed a threshold amount (i.e. €100 M or € 500 M depending on the situation). The directive contains requirements on the general organisation of business, rules of conduct, remuneration, risk management, liquidity management, use of leverage, reporting requirements and the mandatory depositary.
Which type of investment vehicle should I use?
In this section, we look at various asset classes and fund types to see which vehicle is most appropriate for a particular type of fund.
Please note that the overview above is only of an indicative nature and that the optimal choice will depend on a variety of other criteria and requires a careful analysis of the actual situation of an individual fund.
Retail mutual funds
For mutual funds that are marketed to the public and that invest in listed securities, the Dutch ICVC or non-transparent FGR with either FII or EII status would normally be the logical choice. If tax treaty protection is required (such as with many equity investments), the FII regime is more beneficial than the EII regime as the FII is usually entitled to reduced withholding tax rates (or compensation from the Dutch tax authorities).
Money market funds
The same considerations apply here as for regular retail funds. As many money market funds typically do not suffer withholding taxes on the income from their investments, a Dutch ICVC or non-transparent FGR with EII status is normally the right choice.
The FII regime may not always be appropriate for hedge funds in view of the maximum gearing of only 20%. The new EII regime, however, presents an interesting opportunity for hedge funds, as it is not subject to any leverage restrictions. The EII is completely exempt from tax. Contrary to similar entities in other countries, a company with EII status is not subject to any license or other regulatory requirements provided the EII adheres to the regular exemptions (e.g., the basis of the minimum nominal value of the units or shares, see paragraph 4). Furthermore, there are no requirements to involve Dutch service providers or otherwise incur costs in the Netherlands.
Private equity funds
Private equity funds are characterized by the active involvement with regard to the investments, a high-risk profile and high expected returns. This means that both the FII and the EII regimes are normally not available for such funds. Instead, the most tax-efficient solution here would be to use a Coop for holding the various investments, provided that the equity stake in the underlying target companies is at least 5%. In that case, all income and gains derived from these investments should normally not be subject to Dutch tax pursuant to the participation exemption. In the event that the shareholding drops below the 5% threshold, for whatever reason, the participation exemption continues to be applicable to the remaining shares for three additional years, provided that the minimum 5% stake had been held for at least 12 months. This rule is particularly useful for private equity funds that gradually dispose of an investment instead of through a block sale. The fund vehicle itself would be a CV or a foreign limited partnership (e.g., Guernsey, Bermuda, Cayman) formed on top of the Coop.
Fund of funds
A fund of funds is normally best off using an ICVC or FGR with EII status, as this gives maximum flexibility (similar to hedge funds).
Real estate funds
The appropriate type of vehicle for real estate investments mainly depends on the fund’s investment style and the location of the assets. Core funds have the broadest selection to choose from. They have the possibility to use an entity with EII or FII status, but they can also opt for a regular BV without any special tax regime and rely on the Dutch participation exemption for avoiding any tax leakage. The ultimate choice will depend on whether tax treaty protection is required. Value-added and opportunistic funds, on the other hand, are usually not eligible for EII or FII status. They should, therefore, use a BV or Coop for holding the local property companies and ensure that the participation exemption is applicable. In case the fund also invests in real estate assets situated in the Netherlands, the EII regime is not available. The FII regime would then typically provide for the most tax-efficient solution, especially for EU and US pension funds.
Asset pooling funds
Asset pooling allows institutional investors, including pension funds, from several countries to pool their investment assets into a single vehicle, thereby realizing a number of fundamental cost and efficiency benefits. The FGR is an excellent choice as a vehicle for pooling international (pension) assets. The FGR, if properly structured, is treated as a flow-through entity for Dutch tax purposes, so that any favourable tax characteristics of the underlying income are retained at the level of the investors. The Dutch government has committed itself to promote the FGR as the preferred vehicle for cross border asset pooling. The Dutch Ministry of Finance is actively approaching foreign fiscal authorities in order to reach an agreement on the local tax treatment of the FGR. In this respect, the FGR is engaged in fierce competition with the Irish CCF and the Luxembourg FCP.
Dutch company law recognizes two types of limited liability companies, the ‘naamloze vennootschap’ (‘NV’, the Dutch equivalent of a public limited liability company) and the ‘besloten vennootschap met beperkte aansprakelijkheid’ (‘BV’, the Dutch equivalent of a private limited liability company). Both the NV and the BV are incorporated by the execution of a notarial deed. The BV and the NV are similar in basic characteristics, in the sense that they both have legal personality and a capital divided into shares. The most important distinctions are:
• the NV may have bearer shares whereas the BV can only issue registered shares; and
• the BV’s articles of association must contain restrictions on the transfer of shares, which is not compulsory for the NV.
The NV is the entity used for companies the shares of which are to be listed on Euronext in Amsterdam. Unless there is a specific reason to incorporate an NV (e.g., in order to qualify as an ICVC), the BV form is usually chosen at the outset. A BV can easily be transformed into an NV, and vice versa. There is no preference from a Dutch tax perspective for choosing between a BV or an NV. Both types of companies are treated exactly the same for Dutch tax purposes.
Depending on the other jurisdictions that are involved in a particular investment structure, there may be a difference from a foreign tax perspective. For example, the Dutch NV – unlike the BV – is regarded as a ‘per se corporation’ for US tax purposes, which means that it cannot be treated as a flow-through vehicle from a US tax perspective.
Investment company with variable capital (ICVC)
The ICVC is essentially a special subtype of the NV which is specifically geared towards investment companies, in Dutch: the ‘beleggingsmaatschappij met veranderlijk kapitaal’. The main benefit of an ICVC is that it is exempt from certain rules concerning the capital of the corporation. These exemptions relate to the power of the management board to decide on the issuance of new shares, the pre-emptive rights of shareholders, the repurchase of shares and the redemption of shares. It is possible for an ICVC to act as an umbrella investment fund holding various sub-funds each with their own investment strategy by issuing various classes of shares, each representing interests in a distinct portfolio of investments. Since September 2005, it is no longer required for the shares in the company to be listed on a stock exchange. Instead, the manager of the ICVC must possess a license from the Dutch supervisor (AFM) for the offering of shares in the ICVC. Therefore, this vehicle is not only available for listed funds (as was historically the case) but can now also be used by, for example, non listed hedge funds.
Fund for joint account (FGR)
The FGR (in Dutch: ‘fonds voor gemene rekening’) is even more flexible than the CV as no mandatory rules apply. It is simply a contractual arrangement between a fund manager, a fund custodian and the investors. An FGR most closely resembles a unit trust as known in common law jurisdictions, although it is neither a body corporate nor a trust and has no legal personality of its own. Instead, the fund custodian holds legal title to the investments on behalf of the FGR’s investors. Similar to a CV, an FGR can be structured as either a transparent or a non-transparent entity for Dutch tax purposes. Tax transparency is typically achieved by providing for prior written consent of all partners with respect to the admission or substitution of an investor. However, unlike a CV, it is also possible for an FGR to be treated as a transparent vehicle from a Dutch tax perspective if the units may only be issued and redeemed by the fund (‘open-ended investment fund’). In that case, prior consent of the other investors is not required.
General tax aspects
Unlike other popular fund jurisdictions, the Netherlands does not levy any stamp duties or other taxes up on capital contributions in an investment vehicle. In addition, no annual subscription tax or net worth tax is levied in the Netherlands. Finally, outbound interest payments are generally not subject to Dutch withholding tax. With respect to the corporate tax treatment and dividend withholding tax treatment of a Dutch investment fund, three different tax regimes are available:
• the regular regime;
• the Fiscal Investment Institution (‘FII’) regime;
• the Exempt Investment Institution (‘EII’) regime.
Whether a particular investment vehicle is eligible for either FII or EII status depends on its legal form and its tax status (transparent or non-transparent). The various possibilities are summarized in the table below. 3 What kind of tax regime applies?
The following paragraphs contain a description of these three tax regimes in more detail.
By default, all non-transparent entities resident in the Netherlands are subject to Dutch corporate income tax at a rate of 25% (20% for the first EUR 200.000) on all income and gains. It is possible for a Dutch resident entity to calculate its taxable profits on the basis of another currency than the euro, provided that it also prepares its financial accounts in that other currency (see paragraph 5). Despite the relatively high tax rate of 25%, a non-transparent entity such as a BV without special tax status can still present a tax-efficient vehicle for certain equity investments.
This is because of the so-called ‘participation exemption’. The Dutch participation exemption provides for an exemption from corporate income tax of any profit derived from a qualifying equity investment in another company, whether domestic or foreign. The profits concerned may be capital gains realized upon the sale of the shares (including foreign currency exchange results), or any form of (deemed) distribution of profits by the company. On the other hand, any loss incurred on the shareholding in the other company is generally nondeductible, except if it is liquidated.
A Dutch entity can benefit from the participation exemption if it holds at least 5% of the nominal paid-up capital of another company and that other company meets one of the following conditions:
• The participation is not held as a (deemed) portfolio investment (‘motive test’). This motive test should be met if the participation is not merely be held with the purpose to generate a return that can be expected from normal asset management.
• The participation is considered a ‘qualifying portfolio investment’, meaning that (i) the participation is subject to a profit tax resulting in taxation that is reasonable according to Dutch standards (‘subject to tax test’) and/ or (ii) the aggregated assets of the participation consist for more than 50% of non-portfolio assets or of portfolio investment assets of which the proceeds are taxed at a reasonable tax rate according to Dutch standards (‘asset test’).
For purposes of the asset test, real estate assets are deemed to be non-portfolio assets. For private equity funds, venture capital funds, leveraged buy-out funds or real estate funds, a Dutch corporate entity (or opaque, noncorporate entity) can be a very attractive investment vehicle.
Due to the participation exemption, all income and gains from the target investments can be collected tax-free in the hands of the Dutch entity. In case the shareholding drops below the 5% threshold, for whatever reason, the participation exemption continues to be applicable to the remaining shares for three additional years, provided that the minimum 5% stake had been held for at least 12 months.
This rule is particularly useful for private equity funds that gradually dispose of an investment instead of through a block sale. Finally, it is important to realize that the Dutch participation exemption does not require a minimum holding period. Consequently, a capital gain realized upon a sale of qualifying participation after, say, seven months will still be exempt from Dutch corporate tax.
Dividend withholding tax
Profit distributions by regular taxable Dutch resident entities are subject to dividend withholding tax at a maximum rate of 15%. However, there are various instances where a reduced withholding tax applies. For example, distributions made by a Coop to its shareholders are completely exempt from dividend withholding tax.
In addition, a 0% withholding tax rate applies in situations where the shareholder is: • a taxable entity resident in an EU Member State, Norway, or Iceland holding an interest of at least 5% in the Dutch investment vehicle;
• an entity that is resident of a country with a tax treaty with the Netherlands that provides for a 0% rate, such as the United States, Japan, Switzerland, Malaysia, Mexico, Singapore, the United Arab Emirates, Barbados, Bahrain, Oman, or Qatar. In this case, minimum ownership is required (usually 10% or 25%), depending on the specific tax treaty applicable;
• a tax-exempt qualifying pension fund or non-profit organization that is resident in an EU Member State (by way of a refund mechanism); • a US qualifying pension fund or non-profit organization.
Fiscal Investment Institution (FII) 1
An investment entity with FII status is subject to Dutch corporate tax at a rate of 0%. But even though no tax is actually payable by the FII, it is considered liable to comprehensive taxation and subject to the tax laws of the Netherlands. Consequently, most countries are willing to grant treaty benefits to a Dutch entity with FII status. This is a very important advantage over the EII regime and some tax-exempt investment vehicles in other jurisdictions.
Profit distributions by the FII are subject to 15% Dutch dividend withholding tax but this rate only applies effectively to current income (dividends, interest, rental income). All capital gains realized by the FII can be distributed tax-free to foreign investors. Moreover, the 15% withholding tax rate on current income can be reduced under a tax treaty, sometimes to 0% (e.g., in the case of US pension funds).
EU tax-exempt shareholders (e.g., pension funds and charitable organizations) are eligible for a full refund of Dutch dividend withholding tax. Finally, relief for incurred Dutch and foreign withholding taxes can be provided under certain circumstances by effectively reducing the Dutch dividend tax liability on profit distributions by an FII to its shareholders.
An investment vehicle should meet some conditions in order to be eligible for the FII regime. Some of these conditions depend on the regulatory status of the FII and are discussed in this memo.
The following requirements should always be satisfied, irrespective of the regulatory status of the FII:
(i) The FII must have a specific legal form:
• domestic: a BV, NV, or FGR; or
• foreign: a comparable entity incorporated or formed under the laws of an EU Member State, a tax treaty country with a nondiscrimination clause, the BES Islands, Aruba, Curaçao, or Sint Maarten.
(ii) The FII must exclusively be engaged in portfolio investment activities, i.e., it may not (partly) carry on an active trade or business. Traditional mutual funds should have no problem meeting this test, but private equity funds and opportunistic real estate funds typically do not qualify as their investment style exceeds passive asset management. It is possible to obtain prior clearance from the Dutch tax authorities on this matter.
A real estate fund with FII status is allowed to engage in property development for its own investment portfolio, provided that the development activities are carried out in a separate taxable subsidiary. Improvements to existing properties do not qualify as development activities provided that the capital expenditure is less than 30% of the fair value of the property prior to the improvements.
(iii) The FII must distribute its ‘distributable’ profits annually within eight months after the end of its tax year. The distributable profits only include current income (dividends, interest, rental income). Unrealized gains on securities and realized gains on all other investments do not have to be distributed but can be added to a so-called ‘reinvestment reserve’.
(iv) A maximum debt leverage is allowed equal to the sum of 20% of non-real estate assets and 60% of real estate investments (determined on the basis of tax book values). For purposes of these debt leverage restrictions, interests in related companies, the assets of which consist for at least 90% of real estate, are regarded as real estate investments.
(v) Dutch resident entities cannot own, together or alone, an interest of 25% or more in the FII through non Dutch resident entities. (vi) The FII must distribute its dividends equally to all its shareholders (except in the case of umbrella funds, which may have various classes of shares).
In addition to the general requirements listed above, there are some specific conditions regarding the types of investors who may invest in an FII. However, these conditions differ depending on the regulatory status of the FII. The conditions are generally less strict for regulated FIIs than for non-regulated FIIs.
The category of ‘regulated FIIs’ for purposes of this rule includes the following funds:
• funds that are listed on a stock exchange;
• funds (or their manager) holding a license under the Dutch Financial Supervision Act; • foreign UCITS with a European passport. The shareholder restrictions that apply to regulated FIIs are the following:
• There cannot be a single corporate (either taxable or tax transparent) shareholder who holds 45% or more of the shares/units issued by the FII (also taking into account any shares/units held by affiliates), with the exception of another regulated FII.
• No single individual must own interest of 25% or more in the FII. Finally, certain restrictions apply for executive and supervisory board members of a regulated FII in order to preserve the FII’s independence vis-à-vis its shareholders. Most importantly, an FII board member cannot also be a board member of a shareholder who holds an interest of 25% or more. Non-regulated FII The following shareholder restrictions apply to FIIs that cannot qualify as a regulated FII:
• The shares/units issued by the FII should be owned for at least 75% by private individuals, tax-exempt entities, and/or regulated FIIs.
• No private individual may together with his/her partner own interest of 5% or more. The restrictions imposed on regulated FIIs with respect to board independence do not apply to non-regulated FIIs.
Exempt Investment Institution (EII)2
In order to present domestic and foreign asset managers with another alternative for structuring an investment fund, the Netherlands has introduced the EII tax regime. This regime provides for a complete exemption from corporate income tax and dividend withholding tax, very similar to the well-known Luxembourg SICAV. Unlike the FII regime, the EII regime does not involve any minimum distribution requirements.
Furthermore, no restrictions apply with regard to the types of shareholders and gearing ratios. On the other hand, contrary to the FII, the EII is not eligible for tax treaty benefits. The main conditions for a particular fund to qualify for EII status are the following:
(i) The EII must have a specific legal form:
• domestic: an NV or FGR; or
• foreign: a comparable entity incorporated or formed under the laws of an EU Member State, a tax treaty country with a nondiscrimination clause, the BES Islands, Aruba, Curaçao, or Sint Maarten.
(ii) The EII must have at least two shareholders or unitholders.
(iii) The EII must have an open-end character, meaning that the shares/ units are, at the request of holders, repurchased or redeemed out of the fund’s assets.
(iv) The EII must pursue risk diversification. This condition aims to exclude corporate enterprises utilizing an EII subsidiary in support of their regular business operations. Investment funds therefore generally satisfy this test.
(v) The investments must exclusively consist of financial instruments and/ or bank deposits. The term financial instruments include not only equities, bonds, money market instruments, options and futures, but also cash-settled derivative contracts regarding commodities, climate variables, emission licenses, inflation rates or other economic statistics. The EII regime is therefore not open to direct investments in real estate. Moreover, it is not allowed for an EII to invest in Dutch real estate through a partnership that is transparent for tax purposes.
Reporting and audit requirements
Entities which, pursuant to the Dutch Financial Supervision Act, are not subject to supervision by the Dutch Authority for the Financial Markets or the Dutch Central Bank and which do not have to comply with certain accounting standards given their legal status, are very flexible in preparing their financial reporting. For example, tax transparent FGRs can simply include in their prospectus the set of accounting standards they want to apply, whether it be IFRS, Dutch GAAP or US GAAP, or even a limited set of financial reporting standards suited to the needs of the investors. The timing of the reporting can be defined in the fund rules as well. Legal entities such as the BV, NV and ICVC will have to comply with the requirements of the Dutch Civil Code and Dutch GAAP. As long as these entities are not under supervision, they are likely to have limited external reporting requirements under the Dutch Civil Code as they may qualify as ‘small’ entities. Once a certain size is reached, the reporting requirements are more significant. These entities are allowed to apply IFRS voluntarily. In general, limited partnerships such as CVs do not have to comply with the requirements of the Dutch Civil Code, although some exceptions do exist. For entities under supervision (for example investment funds making public offerings of securities with a nominal value of less than € 50,000 per security (or € 100,000 as of 1 January 2012, pursuant to an amendment of the Dutch Financial Supervision Act),both semiannual and annual reporting is required. Reporting requirements include reporting on the nature of the investments, details of expenses and related-party transactions. Deadlines for the reporting are 4 months from year-end (and 2 months for the semiannual reporting). An audit of the annual financial statements is required.
VAT and Fund Structuring
Value Added Tax (‘VAT’) is a significant consideration for fund structuring. The current standard Dutch VAT rate is 21%, which means that VAT can be a real and considerable cost for funds that are not in a position to recover VAT incurred. However, it is possible to mitigate the VAT cost, for example, by structuring a fund in such a way that the management services provided to it are exempt from VAT (see below ‘management fees’). It is also possible, and often useful, to discuss the fund structure with the Dutch tax authorities in advance to obtain their view regarding the VAT position.
This can provide valuable insight regarding the possible VAT implications of the structure. VAT position of the fund Before considering mitigation of the VAT incurred, it is important to consider the VAT position of the fund itself. Prior to a decision of the European Court in 2004, it was common practice in the Netherlands not to treat investment funds as taxable persons for VAT purposes, i.e. with no VAT registration requirement but also no VAT recovery. However, following this decision, it became clear that, under certain circumstances, investment funds can qualify as taxable persons. However, this does not necessarily mean that the fund should charge VAT in respect of its supplies, or that it can recover VAT incurred on costs. This depends on the specific activities of the fund. A fund with an investment portfolio in financial assets (e.g. securities), will generally be making VAT exempt supplies, which will usually restrict the recovery of the VAT it incurs.
The VAT recovery position is important, as this can ultimately have an impact on the performance of the fund. It is important, therefore, to try to minimise the amount of VAT incurred. Management fees A significant part of a fund’s costs may consist of management fees. It is therefore important to establish whether or not such fees are exempt from VAT. European VAT legislation provides for a VAT exemption for the management of special investment funds. This means that no VAT is incurred by such funds on management fees. The implementation of this exemption in Dutch legislation is broad and basically only requires the fund to constitute a ‘collectivity’. This requirement is already satisfied if capital has been raised by several (more than one) legal entities or private individuals. The application of this exemption has been challenged in the European Court, which has raised more questions regarding its scope, i.e. it’s a potential wider application to other types of funds.
Indeed, questions are being put to the European Court to determine if the exemption should apply to the management of pension funds. Discretionary individual asset management is currently regarded as VAT taxable. However, the German Court has referred questions to the European Court asking if the exemption should also apply to individual asset management. Since there are various possibilities for achieving a collectivity of assets (e.g., by pooling arrangements) in the Netherlands, it is possible to secure a VAT exemption for management services.
The definition of management has also been questioned by the European Court that decided that the following services fall within the scope of the management exemption:
• investment management;
• administration: (a) legal and fund management accounting services; (c) valuation and pricing (including tax returns); (d) regulatory compliance monitoring; (e) maintenance of unit holder register; (f) distribution of income; (g) unit issues and redemptions; (h) contract settlements (including certificate dispatch); (i) record keeping;
• marketing. The exemption can apply to services performed by a third-party manager in respect of the administrative management of the funds but only if they form a distinct whole and are specific to, and essential for the management of those funds. A (sub) manager who performs the above services (a)-(i) for a manager/ collective investment fund can, therefore, in principle, benefit from the exemption.
More information about Establish an Investment Fund in the Netherlands
In this guide we have tried to give a non-legal and simplified overview of Dutch Tax and Accounting applications in the Netherlands. There are many specific requirements and regulations that we have not covered and we encourage you to look at the many articles that we have published in our Business Toolkit.