|Are there specific transfer pricing regulations?||Yes|
|Submission deadline upon request||30 days|
|Annual update required||No|
|Official language requirements||Dutch (English accepted)|
|Potential impact of penalties||N/A|
Dutch tax law
Rules for transfer pricing in the Netherlands are based on:
- CITA articles 8b and 8c
- Decree on APAs, ATRs, Financial Service Entities, August 11, 2004, DGB 2004/1338
- Decree on transfer pricing Coordination Group, August 11, 2004, DGB 2004/1339
- APA Decree, August 11, 2004, IFZ 2004/124
- ATR Decree, August 11, 2004, IFZ 2004/125
- Transfer pricing Decree, November 26, 2013, IFZ 2013/184M
- Dutch Decree of the State Secretary for Finance, June 2014, no. DGB 2014/3101
- Dutch Decree of the State Secretary for Finance, June 2014, no. DGB 2014/3098
The Dutch tax authorities follow the OECD guidelines. Reference to the guidelines is made in the transfer pricing decrees issued by the Dutch tax authorities. By these decrees it has been decided that the OECD guidelines are directly applicable for transfer pricing in the Netherlands.
The definition of “associated enterprises” in article 8b of the Dutch Corporate Income Tax Act follows the wording of article 9 of the OECD Model Tax Convention. Companies are considered to be associated if one company has an equity participation in, or management control over another enterprise, which provides the company sufficient control to influence relationships that may give rise to non-arm’s-length arrangements. A ruling from the Dutch tax authorities can provide certainty on this topic.
Companies are free to use any of the accepted methods that lead to an arm’s length result; there is no specific order in in the use of the accepted methods. The accepted methods are:
- the comparable uncontrolled price method
- the resale price method
- the cost plus method
- the profit split method
- the transactional net margin method
Information that should be provided:
- information about the associated enterprises involved
- information on the intercompany transactions between these associated enterprises
- a comparability analysis, describing the five comparability factors as set forth in Chapter I of the OECD Guidelines
- a substantiation of the choice of the transfer pricing method applied
- a substantiation of the transfer price charged
- other documents, such as management accounts, budgets and minutes of shareholder and board meetings
Dutch law does not require that documentation should be in a specific language, but it does require that the information included in documentation should be accessible to the tax authorities. It is possible to have documentation in various languages, in addition to Dutch and English. If the documentation is not in Dutch, the tax inspector can require a translation.
For entities subject to the Corporate Income Tax Act, documentation should be in place at the time the intercompany transaction takes place.
Deadline to submit
Documentation should be submitted upon request. If the documentation cannot be presented upon request, a reasonable time (one to three months) will be granted to prepare the documentation.
Advance Pricing Agreements
Unilateral, bilateral and multilateral Advance Pricing agreements (APA’s) with rollback features are available. The APA process works very efficiently in the Netherlands. There are a number of specific features that enable an efficient and transparent process, including the option to hold pre-filing meetings, the opportunity to develop a case management plan with the APA team to agree upon timing and key steps, and even specific support regarding economic analysis that is available to small taxpayers.
Financial service entities
There are specific (unilateral) APA options for Dutch financial services entities. Financial services entities consist of both financing (mere receipt and payment of intercompany interest) and licensing (mere receipt and payment of intercompany royalties) companies.
APA’s generally last four to five years. Longer terms may be possible in case of long-term contracts. Rollback is possible, if the relevant facts and circumstances have not changed, or if accurate adjustments can be made.
There are no transfer-pricing-specific penalty charges. General penalties apply; these can be a maximum of 100 percent in case of malicious intent.