New policy for entrepreneur facilities in transfer tax
A new policy decision has been published on the entrepreneur facilities in transfer tax, which includes several new approvals.
27 June 2018
Transfer tax is payable upon acquisition of an immovable property located in the Netherlands. Dutch law provides a number of exemptions for, i.a., acquisitions of immovable property in a merger, demerger, and internal restructuring. With these exemptions the legislature seeks to enable economically desirable repositioning of real estate within a group without levying transfer tax, while abuse or improper use are avoided through anti-abuse provisions. The Dutch State Secretary for Finance recently updated the policy on the entrepreneur facilities in transfer tax and combined a number of existing approvals. The recently published policy decision also includes several new approvals, which are outlined below.
Transfer of a company
Acquisition of an immovable property through conversion of a company into a public or private limited liability company (nv or bv) is exempt from transfer tax, provided certain conditions are met. The legislative text stipulates that this exemption only applies if the business capital is transferred into a company newly incorporated to that effect. In practice, however, conversions are often effected by transferring a business into an existing nv or bv. The State Secretary considers application of the exemption in such cases to be desirable, and the policy now includes an approval for application of the exemption - under certain conditions - upon transfer of a company into an existing nv or bv.
Retention requirement upon certification
Shares acquired upon conversion of a company into an nv or bv can be certified afterwards by transferring them into a trust office. If shares are certified three years after the conversion, the retention requirement set for application of the transfer tax exemption is not met. This would essentially mean that the transfer tax not levied is still payable. The policy now includes an approval to omit application of the retention requirement - under certain conditions - if shares granted upon conversion into an nv or bv are certified.
Continuation requirement for enterprise merger
The transfer tax exemption in case of an enterprise merger can be still be reversed if the transferred business is not continued for at least three years after the enterprise merger. This is referred to as the continuation requirement. If the continuation requirement is not met, the transfer tax that was not levied under the exemption is still payable. The recent policy decision provides for relaxation of this requirement. Under certain conditions, this requirement does not apply to businesses acquired in an enterprise merger if these are transferred within the group, without their immovable property.
Acquisition of shares in a demerger
A legal entity that acquires an immovable property by universal title may qualify for a transfer tax exemption. If the acquiring legal entity is a property entity and issues shares as part of the demerger, the exemption does not apply to the acquisition of these shares. The recent policy decision likewise introduces an approval for application - under certain conditions - of the transfer tax exemption upon demerger or split-off to the acquisition of shares in a property entity granted in a demerger or split-off.
The approvals in the policy decision have been granted applying the hardship clause. The decision has become effective on 5 June 2018.
Source: Decision of 25 May 2018, no. 2018-50125, Government Gazette 4 June 2018, 30213.