Background

The Tax Classification Decree prescribes that the similarity approach remains the primary classification rule for foreign entities as of 2025. In general, a foreign entity that is sufficiently comparable in nature and structure to a Dutch legal form will be treated in accordance with such Dutch equivalent. Please see our website post of 8 February 2024 in which the draft Tax Classification Decree was further addressed.

As an attachment, the Tax Classification Decree also contains a non-exhaustive list (Entity List) of foreign entities that have already been classified for Dutch tax purposes. Contrary to what was indicated in the draft Tax Classification Decree, the Entity List is not considered binding, but indicative.

Under the new Dutch entity tax classification principles, as a main rule, CVs and foreign limited partnerships will be classified as transparent for Dutch tax purposes as from 2025, except when such limited partnership should be considered an FGR (i.e., a classification as FGR will prevail under the Tax Classification Decree).

Therefore, in particular CVs and foreign limited partnerships that act as ‘investment fund’ (Fund LPs), may come into scope of the FGR classification for Dutch tax purposes. Such re-classification may also be the case for Fund LPs that are currently treated as transparent for Dutch tax purposes. Considering that the FGR classification prevails, CVs and foreign limited partnerships that are Fund LPs may transition into a non-transparent FGR for Dutch tax purposes as from 1 January 2025, if such Fund LPs possess the key characteristics of an FGR. Reference is made to our website post of 30 October 2024.

Funds that are classified as FGR – the criteria set out in the Fund Decree

The Fund Decree elaborates on the cumulative criteria that must be met by an investment fund to be classified as, or re-classified into, a non-transparent FGR. In short, the Fund Decree provides the following additional explanation on the key characteristics:

  1. The investment fund should invest for joint account (i.e., be established for collective investments).

    In general, the purpose of an FGR (and a transparent fund) is to obtain benefits for its participants by investing for joint account. This implies that an investment fund with only one participant cannot be classified as an FGR. However, an investment fund is not considered to lose its character as FGR, if the participation interests in the investment fund are in the hands of one single investor for a short period of time, in anticipation of more participants joining the investment fund. 

    Unfortunately, the Fund Decree does not address how to deal with certain single investor investment funds, where for example the general partner only has a very limited (nominal) profit right or where there is a second limited partner with either a de minimis profit right or a special profit right (e.g., carried interest).

  2. The investment fund should have a strategy that is classified as ‘normal’ portfolio management (i.e., generally not ‘value-add’).

    To answer the question whether the investment strategy of an investment fund should be considered ‘normal’ portfolio management (not entrepreneurial by nature) reference is made to relevant criteria developed in Dutch case law. The additional reference to ‘otherwise applying funds’ (‘anderzins aanwenden van gelden’) merely provides an extension of the concept ‘normal’ portfolio management. It does not mean that the activities of a non-transparent FGR (or transparent fund) may constitute a business undertaking for Dutch tax purposes. The Fund Decree does not provide for any new insights in this respect.

  3. The investment fund should be an ‘investment fund’ (e.g., an AIF) or ‘fund for collective investment in tradeable securities’ (i.e., a UCITS) within the meaning of the Dutch Financial Supervision Act (Wet op het financieel toezicht; Wft).

    The new rules explicitly state that an investment fund should meet the definition of an ‘investment fund’ or ‘fund for collective investment in tradeable securities’ as referred to in the Wft in order to fall within scope of the FGR classification. As a result, certain type of entities, such as most family funds, are automatically excluded. However, it appears that certain employee participation schemes of investment funds that are structured as limited partnerships may also fall in scope of the FGR definition, despite the fact that such entities are exempt from regulatory supervision. The Fund Decree does not provide any further insights in this respect.

    Furthermore, the Fund Decree stipulates that in case a non-Dutch investment fund is: (i) established or incorporated under the laws of another EU member state that does not make a legal distinction between an ‘investment fund’ (beleggingsfonds) and an ‘investment company with legal personality’ (beleggingsmaatschappij) for purposes of the implementation of the AIFMD or UCITS Directive; and (ii) possesses a legal form that is not comparable to a Dutch public limited company (naamloze vennootschap) or Dutch private limited company (besloten vennootschap), such non-Dutch investment fund will be treated as an ‘investment fund’ or ‘fund for collective investment in tradeable securities’ for purposes of the FGR classification. It is still unclear how this test should be applied in non-EU situations, and this is unfortunately not further clarified in the Fund Decree.

  4. The participations in the investment fund should be embodied by ‘tradeable participation certificates’, whereby participation certificates are not considered tradeable if they are only transferable to the investment fund by way of redemption (in which case it would be a Redemption Fund).

    To qualify as Redemption Fund, the fund documentation must show that a (conditional) redemption right applies. Hence, also semi open-ended investment funds with illiquid assets (e.g., real estate) and closed-ended investment funds may qualify as Redemption Fund.

    The redemption mechanism entails that the participation certificates are only transferable to the Redemption Fund itself and thus a direct secondary transaction between investors is in principle not allowed (see further below). For the sake of completeness, it is noted that a transfer to another group company of the investor and the transfer to an investor’s relative by blood or marriage also constitutes a prohibited transfer to a third party.

    The only exception that applies to the restriction on transfers is a transfer by virtue of inheritance under universal or special title (verkrijging onder algemene of bijzondere titel). Any other transfers under universal and special title are explicitly not excluded from the transfer restrictions (incl. mergers and demergers).

    Hence, a regular sale and transfer by an investor of its participation in a Redemption Fund is not allowed, but the Fund Decree does clarify that it is still possible to include a so-called ‘Secondary Trade’ clause in the fund agreement. A Secondary Trade allows the investor to sell its participation to a buyer ‘through’ the Redemption Fund (i.e., by way of a redemption and reissuance). In such case the settlement of the redemption and reissuance price should be effectuated via the (manager or general partner of the) Redemption Fund (albeit that any up- or discount in relation to the net asset value (NAV) can be settled directly between the selling and acquiring investors).

    In addition, in case the financial settlement of a Secondary Trade has not actually been effectuated through the (manager or general partner of the) investment fund, such investment fund may still be regarded a Redemption Fund, if its constitutional documentation or prospectus prescribe that: (i) transfers by participants to third parties are deemed to take place via the investment fund; and (ii) the manager (or general partner) charges a fee to the seller for the deemed redemption of the participation certificates or to the purchaser for the deemed issuance of the participation certificates.

    Unfortunately, the Fund Decree does not provide any further guidance as to when an investment fund is deemed to have issued 'participation certificates'. Generally, the profit and voting rights of Fund LPs are allocated between investors based on their commitments / capital account. It can be debated whether such Fund LPs have issued ‘participation certificates’, or whether Fund LPs are required to issue ‘unit’ type of instruments, based upon which the profit and voting rights are allocated between the investors.

Impact Fund Decree

Although the Fund Decree elaborates on the FGR criteria in more detail and provides clarity with respect to certain relevant matters, the most uncertain characteristics that we previously touched upon in our website posts remain unclear. For example, the relevance between a ‘passive’ investment strategy and a strategy that is considered more value-add / opportunistic (e.g.,  with a higher risk profile / return) has been acknowledged in the Fund Decree. However, objective criteria to determine the main objective of an investment fund are not provided, requiring Fund LPs (and its investors) to make case-by-case assessments using existing criteria in Dutch case law. In addition, no attention was given to the concept of ‘participation certificates‘ other than the transferability thereof. Furthermore, the assessment whether an investment fund meets the definition of an ‘investment fund’ or ‘fund for collective investment in tradeable securities’ as referred to in the Wft remains complex.

Other announcements and developments

In parliamentary proceedings (dated 29 November 2024 and 6 December 2024) it has been recognised that the Dutch government is aware of issues and uncertainty that may arise with respect to the Dutch tax treatment of certain legal forms, especially CVs and foreign limited partnerships.

For that reason, additional transitional rules have been implemented which allow Fund LPs that are currently transparent to restructure into a Redemption Fund during the calendar year 2025 (without adverse consequences that would otherwise arise as from 1 January 2025). As one of the conditions, the Fund LP should in 2024 already demonstrate the intention (e.g., via minutes or correspondence) to take measures in the course of 2025 in order to meet the conditions of a Redemption Fund. It is noted that if a Fund LP would ultimately not be restructured into a Redemption Fund during 2025 (e.g., if not possible from a legal perspective), the Fund LP would be classified as a non-transparent FGR as per 1 January 2025.

Furthermore, potential issues with the new Dutch entity tax classification rules will be further investigated by the Dutch government during 2025. In this respect, the Dutch government will also reach out to pension funds and other asset managers that may be adversely impacted by these rules to discuss the potential impact.

Takeaway

The Fund Decree provides for some helpful insights. However, the scope of the prevailing FGR classification criteria remains unclear due to lacking guidance with respect to certain of FGR characteristics. It is unlikely that these concerns will be addressed before year-end 2024. Irrespective of the present uncertainty, it is still recommended that Fund LPs that may (potentially) fall within the scope of the new FGR definition undertake the necessary actions before year-end 2024 (in particular to prepare the intention statement as referred to above) in order to limit potential adverse tax consequences as of 1 January 2025.