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Recovering Dutch dividend withholding tax by foreign investment funds
On 10 July 2015, the Dutch Supreme Court rendered an important verdict regarding the comparability of foreign investment companies with Dutch fiscal investment companies (“fiscale beleggingsinstellingen, or fbi’s”). Taxand Netherlands outlines the case and it's impact to date.
The Supreme Court held that a Dutch dividend withholding tax obligation is one of the key conditions for foreign investment companies to be comparable to Dutch fbi’s - this verdict has been widely criticised.
Despite the negative Supreme Court verdict, we have continued to argue that a Dutch withholding tax obligation is not relevant for comparing a foreign investment fund to a Dutch fbi. Foreign funds seldom have a Dutch dividend withholding tax obligation, but, in our view, can still be objectively comparable to Dutch fbi’s.
On 1 August 2016, the Dutch lower court has responded to the discussions and has requested the Dutch Supreme Court reconsiders, or at least clarifies, its verdict.
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Although initially it seemed that the chances of success for foreign investment companies to obtain a refund had been significantly reduced as a result of the SICAV case, the verdict should not create an obstacle for RICs arguing comparability with a Dutch fbi. The recent developments show that even a negative Supreme Court verdict did in fact not stop most of the foreign investment funds in pursuing their claims – especially funds with material claims. The number of “fbi” claims brought before court is still increasing, despite the fact that (presumably) none of the foreign funds met the criterion set by the Supreme Court in its verdict in the SICAV case.