DT Agreements: Netherlands - Income from a UK source paid to a resident of Netherlands
UK dividends paid to a resident of Netherlands - portfolio investor
The DTA (see Article 10) provides for the payment of the excess of UK tax credit afterretention of 15% of the aggregate of the UK dividend plus the tax credit. But see INTM343520 about UK dividends paid on or after 6 April 1999. Seealso INTM343510 for a description of the term ‘portfolioinvestor’.
Under the terms of Article 10(3)(d)(i) of the DTA a Netherlands company is entitled to atax credit if
- its shares are officially quoted on a Netherlands Stock Exchange and
- the conditions of admission to a quotation are in conformity with the conditions set out in Schedule A to the Directive of the Council of the European Communities dated 5 March 1979 No. 79/279/EEC.
The rules for admission to a quotation on a Netherlands Stock Exchange are not reallyany different from the conditions set out in Schedule A to the EU Directive. Where thecompanys shares are quoted on the Netherlands Stock Exchange you can accept thatthis condition for relief is satisfied.
There is a question on the Neth5/Company/Credit claim form that will help you to identifywhether the claimant companys shares are officially quoted on a Netherlands StockExchange. If its shares are ‘quoted’, a Netherlands Limited company or NV (Naamloozevennootschappen) is entitled to a tax credit if all the other conditions for relief aresatisfied.
Article 10(3)(d)(i) of the DTA also provides that where the shares of the company are notquoted on a Netherlands Stock Exchange relief may still be available. In these cases thecompany must be able to show that it is not controlled by a person or twoor more associated or connected persons together, who or any of whom would not havebeen entitled to a tax credit if he had been the beneficial owner of the dividends.
Article 10(3)(d)(ii) defines control as meaning control for UK taxpurposes. There are definitions of control for various Corporation Tax purposes in ICTA1988/S416 and S840. These indicate that in general a person has control of a company if hehas the power to secure that the affairs of the company are conducted in accordance withhis wishes. This may be achieved in various ways but a person is likely to be regarded ascontrolling a company if, for example, he possesses or is entitled to acquire the greaterpart of the voting power in the company or the greater part of the share capital or of theissued share capital of the company.
Where any of the shareholders of a company that is not quoted on a Netherlands StockExchange are resident outside of the Netherlands, the company must show that it is notcontrolled by a person or two or more associated persons acting together who or any ofwhom would not be entitled to a tax credit if they were the beneficial owner(s) of thedividends. For this purpose we have to look at the control of the controlling persons toconfirm that none of them is controlled by non-qualifying persons. Provided that is thecase relief is likely to be allowable. All such cases should be referred toTechnical Advice Group before relief is allowed.