NL beneficial ownership case
For the first time, the Dutch Supreme Court applied the Danish beneficial ownership judgements (ECJ C-116/16 and C-117/16) in a Dutch CIT case. The case involves a low substance, non-conduit holding structure. The Supreme Court acknowledges that the Netherlands must apply the EU tax abuse concept to the Dutch CIT regime applicable to foreign substantial shareholders in 2012. This means that the tax authorities should prove the existence of a tax abusive motive (subjective test), but the taxpayer may provide counter-evidence that the structure is not artificial and devoid of economic reality (objective test). This case underlines the importance of real substance in case a tax benefit is obtained.