Recently, there has been a lot of discussion about the fact that the Dutch law creates good conditions for running investment entities whose assets are comprised of, e.g., start-ups, securities, real estate, but also digital assets, includingcryptocurrencies such as Bitcoin. Well, the Dutch seem to have overtaken Europe as usual, and the Dutch legal system again has much more to offer than other legal systems combined.
In times of risk diversification, our clients, when planning their structures for investments, look at the solutions available in the Netherlands with often greater openness than at the Polish offers, for various reasons. The main arguments justifying the interest in this region are:
- access to international capital;
- better exposure to investments of the region not only from Poland;
- the reputable brand of the country as a more mature one in terms of investment.
Therefore, we present (as simplified as possible) what types of funds/investment entities the Netherlands offers, what they are characterized by and, above all, what their tax system looks like.
THE DUTCH FUND FOR MUTUAL ACCOUNT – FGR
The structure of this fund is laid down in a contract between the participants, the manager, and the depositary. The FGR therefore does not have a strictly defined form/imposed framework. Such a fund can take two distinguishable forms: an open-ended and a closed-ended investment fund. Each of them serves a completely different purpose
The former i.e., the open-ended investment fund, is characterized by the transferability of participation units, i.e., the freedom to acquire and sell shares without having to obtain the consent of other fund participants.
On the contrary, the latter, i.e., the closed-ended investment, excludes the trade in participation units, which automatically entails the mandatory consent of each participant to the disposition of shares. This is why it is often used in the planning of family assets succession.
For example: an accumulated pool of assets (real estate, cash, securities) is registered by the so-called manager who acts as a custodian of these assets, and the fund’s participants receive non-transferable participation units (shares) when investing in the fund. These participation units may be transferred only with the consent of all participants (unless their buyer is to be a relative or the closed-end investment fund itself).
FOUNDATION IN THE NETHERLANDS
The specificity of setting up the so-called STAK foundation (voting trust foundation) under Dutch law consists in the fact that it is used to exercise voting rights on shares/stocks held by the foundation in other entities (both Dutch and foreign companies). At the same time, the economic benefits yielded by these shares/stocks are actually granted to third parties. This is performed following the principle whereby a STAK, when acquiring shares, simultaneously issues to their “sellers” certificates documenting the rights to these shares, with the exception of voting rights. In other words, all material benefits associated with the shares (e.g., the right to dividend) are vested in the “seller” – a third party. When distributing the profits of a given company, a STAK transfers the entire profit from the shares to the holders of certificates.
In principle, the certificates are transferable, but this transferability may be subject to restrictions imposed by the foundation. In this case, the regulation of certificates will depend on the compliance with the requirements set by the fund in its internal regulations.
What is the purpose of this construction?
First of all, it allows for controlling decision-making processes in entities with a large number of shareholders, while at the same time ensuring anonymity for the shareholders. When transferring shares to the foundation, it is the foundation (and not the actual shareholder) which is entered in the trade register as a partner. In addition, the shares transferred to the foundation are excluded from inheritance, which significantly facilitates ensuring the continuity of the entity’s management. Interestingly, sometimes the foundation also becomes a tool for implementing a kind of employee capital programs, as it allows for providing the employee with a profit share for the period of providing services/work to the company without the right of control.
BESLOTEN VENNOOTSCHAP (BV), OR LIMITED LIABILITY COMPANY AS YOUR INTERNATIONAL HOLDING
A Dutch holding company will be exempted from taxation on the territory of the Netherlands (CIT amounts to 20/25%) if its income is obtained due to participation in another company (dividends and capital gains) in which it holds at least 5% of the share capital.
The conditions to be met by the holding company in order to benefit from the exemption are:
- The Motive Test – it must be apparent from all of the factual circumstances that the holding company’s objective is to obtain a higher return on the subsidiary than can be expected from the management of the passive portfolio of assets. There is a presumption of such circumstances when the parent company participates in the management of the subsidiary or performs an essential function for the subsidiary.
- The Asset Test – the assets of a subsidiary must consist of less than 50% of tax-free passive assets. In practice (in accordance with the regulations), these are assets which are not necessary for the company to conduct business, or the income derived from them is taxed at an effective tax rate of less than 10%.
- The Subject-to-Tax Test – for the condition to be met, the subsidiary must be subject to an appropriate level of taxation according to Dutch standards. In principle, shares are considered to be subject to appropriate taxation if they are subject to a tax on profits levied at a rate of at least 10%, but other influencing factors, such as the moment or the basis of taxation, may also be relevant in addition to the rate of taxation.
INVESTMENT FUNDS IN THE NETHERLANDS
Exempt Investment Institution VBI
VBI – Exempt Investment Institution (vrijgestelde beleggingsinstelling) is a fund which has obtained the status of a vehicle exempt from the corporation income tax on profits earned and from the dividend tax collected at source on dividends paid. Such status may be granted to entities that fulfil the conditions defined by the Dutch law. VBI, as a financial institution, is subject to supervision, in particular by the tax authorities. And in certain cases, it requires obtaining a licence from the Dutch Authority for the Financial Markets for investment activities. This applies to a situation where:
- the entity offers investment products with a value exceeding EUR 50,000
- the entity offers its shares to fewer than 100 persons (who are not professional investors).
What should you pay attention to when applying for the VBI status?
- Investment fund. The entity must be an investment institution as defined by the Dutch Financial Supervision Act, and therefore an institution intended to raise funds and acquire goods/assets for the purpose of collective investment and guarantee its participants a share of income. The VBI status would therefore not be granted to an entity whose task is to invest private funds belonging to a single family, even if it had several shareholders.
- Form of business. Entities conducting investment activity in the form of a joint-stock company (with a minimum company capital of EUR 45,000) or an open-ended trust fund may apply for the status of an exempted institution.
Dutch BV companies (equivalent to limited liability companies) in order to obtain such status, must first carry out the process of transformation into a joint-stock company, increase the company’s capital to the aforementioned sum of EUR 45,000 and amend the company’s internal documents (articles of association) to bring them into line with the requirements imposed by the legislator. In essence, BV companies are private entities, while the objective of a VBI is to conduct investments invest with considerations for a broad circle of participants (see point 5 below).
- Strictly specified subject matter and objects. The only eligible object of institution shall be to invest the assets taking into account the associated risks in order to ensure an increase in value and return on investment. This must be reflected in the entity’s internal regulations (articles of association).
- Subject of investments. A VBI must be an institution dedicated to making all kinds of passive investments and therefore it is used to invest in financial instruments such as:
- shares and other securities equivalent to shares, which are traded on the capital markets;
- bonds and other transferable debt instruments on the capital markets;
- generally transferable securities other than shares and bonds which grant the right to acquire shares or bonds by subscription or exchange;
- participation units or shares in investment institutions;
- money market instruments;
- futures and derivative contracts;
- options, swaps.
Widely understood investments in real estate – conducted both directly and indirectly – e.g., through investments in real estate development funds are not permitted.
- Collective investment. A VBI is a collective investment institution, which means that in order to obtain such status an entity must have at least two shareholders who will jointly invest assets, participate in costs, share risks and profits from investments. VBI shareholders may be natural persons, legal entities and institutional investors.
At the same time, an investment entity in which a given person (shareholder) has too high a capital involvement (too many shares) will not obtain the VBI status. The majority shareholder may not hold more than 90% of the shares, on the condition that the remaining 10% does not belong to the spouse (if the matrimonial union of estates has been established between the spouses).
- Requirement of investment risk diversification. An exempted investment institution may not invest in one specific product only. It is necessary to spread the risk by diversifying investments.
- Redemption funds. Furthermore, a VBI must have at its disposal the means to repurchase or redeem the shares at the request of the shareholders. In this respect, it will be sufficient if the investment institution guarantees its shareholders this possibility once or several times per year (thus, it is not necessary to maintain funds throughout the whole year). Internal regulations (articles of association) should contain specified provisions in this respect. Otherwise, it will not be possible to obtain the VBI status.
Who is VBI for?
The VBI regime is worth considering in the case of a holding company in which the main shareholder has a surplus of investments or liquid assets (this usually happens after the sale of a company conducting business operations), as well as in the case of entrepreneurs who want to relocate their foreign investment entity to the Netherlands. An investment entity that has obtained the VBI status will not be considered a resident of the Netherlands for the purposes of double taxation avoidance agreements. This is tantamount to having no right to reduce or deduct the Dutch or foreign tax withheld at source on payments made to it.
FBI INVESTMENT FUND
Dutch law also provides for the possibility of obtaining the status of FBI, i.e., a special status of investment fund (fiscal investment institution), which can be applied for by investment institutions operated in the form of a joint-stock company, a private company (BV) or a trust fund whose activity consists in capital investment. The FBI status guarantees a number of tax benefits, namely a zero rate of corporation tax and the possibility of deducting the tax withheld at source from the dividend paid to shareholders.
Unlike VBI, in the FBI regime it is possible to invest in real estate within the territory of the Netherlands. However, the investments carried out through an entity with the status of a fiscal investment institution are associated with the need to meet certain investment conditions, including the obligation to distribute dividends or prevent a shareholder who is a natural person from holding a majority of shares.
THINGS WORTH REMEMBERING
Dutch funds not only meet the needs of Polish investors who are looking in vain for solutions allowing exemption from taxation of investments below 5% (Polish AIF provides the possibility of exemption for income from shares/stocks from 5% upwards), but also some Dutch solutions additionally allow for filling many different gaps related to the confidentiality of the assets held. Separating the right to vote from the right to profit in the Dutch STAK regime is also an excellent solution. Considering the fact that Dutch funds, on the basis of Polish tax regulations, can benefit from the CFC exemption, they constitute an excellent instrument for the dynamically developing market of new investments on the banks of the Vistula River.