Structures of secret Dutch tax rulings revealed

Opinion

9 May 2017

Ministry of Finance forced to disclose top 10 of most-used structures

For the first time, the Dutch Ministry of Finance has had to disclose the structures of so-called tax rulings: secret deals that are agreed with hundreds of corporations annually in the Netherlands. Through a Freedom of Information request, the Dutch newspaper Trouw(opens in new window) has obtained an internal government memo in which the most common structures for hundreds of Advance Pricing Agreements (APAs) and Advance Tax Rulings (ATRs) are listed.

Until now, the Minister of Finance and his Deputy Minister had so far never shared such information with neither the Dutch Parliament, nor the public. At the end of March 2017, the disclosure of these sensitive government documents prompted major media coverage, public outcry, and political debate about tax rulings in the Netherlands. Many rulings are agreed with foreign corporations, which means this Dutch government memo is also of particular interest to an international audience.

Carry on as usual

The memo dates back to 2015 and was prepared by the so-called ‘APA/ATR-team’ for Eric Wiebes, Deputy Minister for Finance. The memo was to inform him about the (then) current ruling policy and practice of the Ministry, in preparation for a decision on whether the current policy and practice should carry on as usual. He decided that continuation was indeed no problem.

Sharp rise in secret ‘sweetheart tax deals’ with multinational corporations

The memo was never discussed in Dutch Parliament, despite repeated questions by Dutch MPs for more detailed information about the content of tax rulings with (foreign) companies in the Netherlands. The Dutch Parliament – and so many other national European parliaments – have been refused information that – apparently – was readily available. This information is crucial in fulfilling their task of exercising democratic control of the functioning and policies of the government. Withholding this information despite of multiple requests and debates in Parliament in recent years is harmful to democracy.

Keeping them in the dark

The Ministry not only kept Dutch MPs in the dark, but also foreign tax authorities. For example, regarding informal capital rulings, the memo states that:

The Netherlands levies the amount to which it is entitled, whereas the foreign country does not (fully) levy what, in our view, it is entitled to. It goes without saying that creating international mismatches causes tension, especially if certainty about it is provided beforehand. After all, we see that informal deals are being done and to date we have not been informing the other tax authority about these deals.

Note that since 1 January 2017, under new EU rules, the authorities are required to exchange limited information about rulings(opens in new window) . But it remains unclear how helpful the Dutch tax authorities have been and might still be towards their colleagues abroad.

BFF

The Dutch tax authorities are, however, very friendly towards (foreign) corporations. The attitude and arguments of the civil servants that wrote the memo leads to the thought that corporate lobbying is a waste of money and time: the civil servants at the tax authority could not be more business-friendly. In the game of tax rulings, it seems corporations and governments are on the same team.

The memo not only provokes such considerations; it also leaves us with some questions. Such as: What does this mean in terms of state aid? Are any of the structures described at risk of not being in line with EU competition rules?

Now what?

At the request of various MPs, a plenary debate(opens in new window) will be held in the Dutch Parliament(opens in new window) . The Deputy Minister will then have to provide more information based on the several written parliamentary questions he has already received, and of course try to defend the government’s policies and his decision to not share more information on several occasions over the past few years. To be continued…

Sources (all in Dutch):

Links to news articles: