The Meaning of Avoidance and Aggressive Tax Planning and the BEPS Initiative

This national report has been prepared as a contribution to the Conference of the European Association of Tax Law Professors entitled ‘Tax Avoidance Revisited: Exploring the Boundaries of Anti-Avoidance Rules in the EU BEPS Context. The conference is to be held in Munich, Germany, on 2-4 June 2016. The national report – quite comprehensively – deals with the phenomena of tax avoidance and tax planning by multinationals and the addressing of these in the Netherlands’ corporation tax system. Topics addressed include:

• General observations on tax avoidance, tax planning and aggressive tax planning;
• National GAAR (fraus legis), and accompanying case law including case law on mismatches;
• Tax Base Calculation/Transfer Pricing, and accompanying case law (e.g. “Non-Businesslike Loans”, “Umbrella guarantee”, “Mauritius” and “Italian Listed Company”);
• SAARS (interest deduction limitations – 10a, 10b, 13l, and 15ad CITA) including case law;
• SAARS (other than interest deduction limitations – 13(17), 13a, 13aa, 17(3)(b), 20(4), 20a CITA, 4(7) DWTA) and accompanying case law;
• Case law on corporate interrelationships anti-abuse;
• OECD BEPS impacts;
• EU BEPS/EU interrelationships (soft law/hard law; both primary/secondary law – e.g. Freedoms, Parent- Subsidiary Directive);
• Rulings practices;
• Netherlands international tax policy aspects involving BEPS measures.