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The European Commission has initiated an infringement procedure against the Netherlands, challenging its current tax regime that provides a withholding tax (WHT) reduction exclusively to domestic investment funds, while excluding foreign funds..
This development may compel the Netherlands to reassess and potentially amend this discriminatory practice to align with EU law.
The infringement procedure enhances the likelihood that foreign multi-investor investment funds could successfully reclaim WHT paid in the Netherlands.
WHT refund applications for the 2021 tax year must be submitted by the end of 2024 to avoid being barred by the statute of limitations.
On 25 July 2024, the European Commission announced its decision to initiate this infringement procedure against the Netherlands through a letter of formal notice (INFR 2024/4017).
In the formal notice, the Commission challenges the Dutch WHT regime, which is seen as infringing upon the fundamental freedom of the movement of capital as outlined in Article 63 of the Treaty on the Functioning of the European Union (TFEU) and Article 40 of the European Economic Area Agreement.
The issue lies in the Dutch tax law that grants WHT reductions solely to domestic investment funds, excluding foreign funds that are otherwise comparable to Dutch investment vehicles.
This procedure could force the Netherlands to reconsider its approach to taxing foreign investment funds, particularly those with multiple investors, a practice that has been in place for many years.
The infringement procedure follows significant decisions by Dutch national courts, which were influenced by the Court of Justice of the European Union (CJEU) ruling in the Köln Aktienfonds DEKA case (CJEU case C-156/17, decision dated 30 January 2020).
In a ruling on 9 April 2021, the Dutch Supreme Court (Hoge Raad der Nederlanden) decided that foreign investment funds are not entitled to a refund of Dutch WHT.
Under current Dutch law, domestic investment funds effectively receive a reduction in Dutch WHT on dividend income through an offset mechanism applied to the WHT paid by distributing Dutch companies.
However, this offset is not available to foreign investment funds, creating a discrepancy that makes non-Dutch investment funds less appealing to Dutch investors and investments in Dutch companies less attractive to foreign funds.
Despite criticism, the Dutch Supreme Court upheld this regime, arguing that the tax situations of Dutch and foreign funds are not objectively comparable, and therefore, the regime does not constitute a restriction on the free movement of capital.
The European Commission’s infringement procedure could lead to significant changes in the Netherlands’ taxation of foreign investment funds.
Infringement proceedings are initiated under Article 258 TFEU when the Commission identifies potential breaches of EU law.
If a Member State fails to correct an identified breach, the Commission may issue a reasoned opinion and eventually refer the case to the CJEU.
Should the CJEU rule against the Netherlands, the country would be required to take corrective measures.
Failure to comply could result in the Commission imposing financial penalties under Article 260 para. 2 TFEU.
The Netherlands has two months to respond to the Commission’s concerns; otherwise, the Commission may escalate the procedure.
In summing up, the European Commission’s infringement procedure against the Netherlands marks a critical juncture for the country’s tax regime concerning foreign investment funds.
If upheld, this action could necessitate substantial changes to align Dutch tax practices with EU law, particularly in ensuring that foreign funds are treated equitably.
The potential repercussions include not only financial penalties but also a broader impact on the attractiveness of the Netherlands as an investment destination.
As the Netherlands faces the challenge of responding to the Commission’s concerns, the outcome could set a precedent for how similar cases are handled across the EU, reinforcing the principle of non-discrimination within the internal market.
If you have any queries about this article on the EU Infringement Procedure v Netherlands Fund Tax Rules, or Dutch tax matters in general, then please get in touch.
Singapore’s 2024 Budget, announced by the Hon. Minister of Finance and Deputy Prime Minister Lawrence Wong on February 16, 2024, includes updates to tax incentives aimed at fostering the growth of the fund management industry and supporting the family office sector.
Here’s an overview of the key changes.
The tax incentives governed by Sections 13D, 13O, and 13U of the Income Tax Act 1947, originally set to expire on December 31, 2024, have been extended until December 31, 2029.
Limited partnerships registered in Singapore under the Section 13O scheme will now be included in the tax incentives.
Revised economic criteria for Qualifying Funds under all three schemes will be introduced, effective from January 1, 2025.
The Monetary Authority of Singapore (MAS) is expected to release detailed guidelines on these changes by the third quarter of 2024.
The extension of tax incentives provides continuity and stability for fund managers operating in Singapore, encouraging further investment and growth in the industry.
The inclusion of limited partnerships expands the scope of entities eligible for tax benefits, potentially attracting more investment and fostering innovation.
Revised economic criteria for Qualifying Funds aim to ensure that the incentives target funds that contribute positively to Singapore’s economy and financial ecosystem.
Singapore’s extension of tax incentive schemes for fund managers demonstrates its commitment to maintaining a conducive environment for the fund management industry and supporting the growth of the family office sector.
These changes provide clarity and certainty for businesses operating in this space, fostering continued innovation and investment.
Stakeholders should stay updated on the detailed guidelines to understand the full implications of these changes.
If you have any queries about this article on the Extension of Tax Incentive Schemes for Fund Managers, or Singapore tax matters more generally, then please get in touch.
The Finance Commission’s recent query session brought crucial clarifications from the Italian Ministry of Economy and Finance, marking a pivotal moment for investment funds across the European Union (EU) and the European Economic Area (EEA).
With the official response numbered 5-02060 on February 27, 2024, Italy has clearly defined the application scope of its new dividend exemption regime, shedding light on a subject that had hitherto remained in the shadows.
Historically, dividends disbursed by Italian entities to non-Italian investment funds were subject to a withholding tax under Article 27(3) of the Presidential Decree no. 600 of 1973, typically pegged at 26%.
However, the landscape underwent a transformative change with the Budget Law 2021 (Law no. 178 of December 30, 2020), extending the exemption previously reserved for Italian investment entities to encompass EU and EEA UCITS and alternative funds managed under supervision.
This amendment sparked a wave of uncertainty among professionals regarding its effective date and applicability concerning the formation of profits, the establishment of funds, among other temporal factors.
In a decisive move, the Italian Ministry confirmed the exemption regime’s effectiveness from January 1, 2021, irrespective of profit accrual periods, distribution resolutions, or the fund’s establishment date.
This clarity not only simplifies the tax landscape for qualified UCITS and alternative investment funds but also underscores Italy’s commitment to fostering a favorable investment environment within the EU and EEA regions.
The exemption regime’s retroactive application from 2021 presents a significant boon, potentially impacting the strategic planning and tax liability of investment funds operating or considering operations within Italy.
Italy’s proactive stance in refining its tax regime for EU and EEA investment funds reflects a broader strategy to integrate more seamlessly into the European financial ecosystem.
By removing previously ambiguous temporal barriers, Italy encourages a more fluid and advantageous investment flow, reinforcing its position as an attractive destination for international funds.
If you have any thoughts or queries about this article called ‘Italy Enhances Investment Fund Tax Regime,’ or Italian tax matters in general, then please get in touch.