Acquisition bare legal ownership of shares in real estate entities subject to Dutch RETT | Deloitte Nederland

Article

Acquisition bare legal ownership of shares in real estate entities subject to Dutch RETT

AG Wattel has advised the Supreme Court to rule that real estate transfer tax is due by a Kapitalverwaltungsgesellschaft that acquired the bare legal ownership of shares in Dutch real estate entities.

9 November 2020

The AG takes a different position from the Zeeland-West-Brabant District Court and the Court of Appeal (see our alert of 3 March 2020 for more information about the Court's decision).

Background

On the basis of article 4 of the Law on taxation of legal transactions (‘Wet op belastingen van rechtsverkeer’), the acquisition of shares in a Dutch real estate entity (hereinafter: OZR) is taxed with RETT, provided that an interest of 1/3 or more of the shares is acquired.

In the present case, a Kapitalverwaltungsgesellschaft (hereafter: KVG) established under German law acquired all shares in several Dutch real estate entities. She bought these shares on behalf of a German Sondervermögen (hereafter: SV). As a result, the KVG has obtained the legal ownership of the shares and (the participants in) the SV the full beneficial ownership of the shares. The question at hand is whether the KVG has acquired 1/3 or more of the shares and, as a result, the payment of RETT was correct.

AGO

AG Wattel opines that this is the case. Although on the basis of the deeds, the KVG has, strictly speaking, become the legal owner of the shares and, in that capacity, it can exercise voting rights in those shares, this does not mean, according to the Court of Appeal, that it also has an interest in those shares. The KVG only holds the shares for the account and risk of the SV, which cannot itself be a shareholder because it has no legal personality. The actual interest in the shares rests with the participants in the SV. This means that the KVG does not owe any RETT.

The term 'interest' has replaced the former term 'issued capital' in order to be able to ignore certain shares in Dutch real estate entities when carrying out the test whether 1/3 interest is acquired in a Dutch real estate entity, i.e. shares that are not representative of the (operating) value of the real estate entity, especially for change in value and excess profit. Only shares of which the value does correlate with this are taken into consideration regarding the 1/3 interest threshold. Since the Dutch real estate entities have only issued one class of shares, all shares in the real estate entities have to be taken into account whether they represent the ‘interest’ in the (assets of the) Dutch real estate entities. The KVG has acquired all the shares in the Dutch real estate entities, so more than 1/3 and as a result RETT is due.

Practical consequences

If the Supreme Court follows the AGO, this will confirm existing practice. At present, RETT is usually triggered in these kind of situations, not only in the case of SVs but also, for example, in funds on joint account (fondsen voor gemene rekening) with a separate depositary/manager and limited partnerships (CVs) with a managing partner who retains legal ownership.

Since a different view is also possible in view of the purpose of the aforementioned article 4, we expect the Dutch State Secretary for Finance to lodge an appeal in cassation in this procedure, which means that the final judgment should be awaited.

We expect that the Supreme Court will follow the AGO since the legislator has opted for levying RETT when acquiring (bare) legal ownership of real estate, and it is then in line with the system that RETT is also levied if this (bare) legal ownership is obtained indirectly in full through the (bare) legal ownership of shares.

Tax-i™ analysis

In order to provide you with some insights into the historical context, we have conducted an analysis via Tax-i into earlier Opinions of AG Wattel and subsequent judgments of the Dutch Supreme Court. We notice that AG Wattel was followed by the Supreme Court in 69% of his conclusions.

Finally

If you have any questions about the above, please contact your VAT advisor.

Deloitte notes that the analysis performed by tax-i is based on publicly available cases and conclusion published on Rechtspraak.nl. This particular analysis is referring to all cases and conclusions published since 2013. Though we appreciate that Rechtspraak.nl only publishes around 5% of the cases we point out that all cases of the Hoge Raad and all conclusion are published conform article 3.a of the Besluit selectiecriteria uitspraken databank Rechtspraak.nl 2012.

Did you find this useful?