NETHERLANDS Law and Practice Contributed by: Nathalie Idsinga and Mignon de Wilde, Arcagna
of or shareholdings in, such estates may be wholly or partially exempt from Dutch personal income tax, gift and inheritance tax and real estate transfer tax. In addition, country estate holding companies may be exempt from corporate income tax. The applica - tion of these exemptions is subject to strict terms and conditions. 2.7 Transfer of Assets: Digital Assets Dutch law does not contain specific provisions on the succession of digital assets. Cryptocurrency is treat - ed as an asset that can be transferred between indi - viduals and bequeathed to a beneficiary under a will. According to the Dutch tax authorities, for personal income tax purposes, income from cryptocurrency is taxed in Box 1 if it qualifies as income from business activities or other activities taxed in Box 1. If not, the cryptocurrency is taxed in Box 3. If cryptocurrency is transferred by inheritance or gift, inheritance or gift tax is due if the holder was (deemed) resident in the Netherlands at the time of death or donation. The tax is calculated based on the cryptocurrency’s value at that time and is payable by the beneficiary (see 1.1 Tax Regimes ). 3. Trusts, Foundations and Similar Entities 3.1 Types of Trusts, Foundations or Similar Entities The Dutch foundation ( Stichting ) is a legal entity often used in estate-planning structures both in asset pro - tection and charity structures. Its founders establish it through a notarial deed. A foundation has no members or shareholders. It is not allowed to make distribu - tions to its founders or members of the board and may only make donations to others, except for charitable or social purposes. The foundation may issue depositary receipts ( cer- tificaten ) that grant beneficial rights to assets legally owned by the foundation, while retaining the vot - ing rights. A foundation that has issued depositary receipts is generally referred to as a STAK ( stichting administratiekantoor ). Through issuing depositary receipts, the legal ownership and economic rights to the assets, often shares, are separated. A STAK is
frequently used in wealth and holding structures for family governance purposes. 3.2 Recognition of Trusts The Netherlands does not have domestic trust law. However, as a party to the Hague Trust Convention, the Netherlands recognises foreign trusts established in accordance with the Convention’s requirements. In principle, trust assets are not subject to Dutch succes - sion law, including forced heirship rules. However, the transfer of assets into a trust may, in some cases, be considered a gift that infringes upon forced heirship rights. This could give rise to a claim by a forced heir against the trustee. Under the Hague Trust Conven - tion, recognition of a trust may be refused if it would prejudice forced heirship entitlements. 3.3 Taxation of Trusts, Foundations and Similar Entities Located in Other Jurisdictions Trust If a foundation is used as a trust or trust-like entity, it generally qualifies as an SPA subject to the SPA regime (see 1.1 Tax Regimes ). The SPA regime does not apply to Dutch corporate income tax. For corpo - rate income tax purposes, the assets and liabilities of a trust are not attributed to the donor. It is there - fore necessary to determine whether the trust itself is subject to corporate income tax. A foundation is only subject to corporate income tax if it carries on a business enterprise. If the trust’s assets and liabili - ties consist solely of portfolio investments or passive shareholdings, it is generally not subject to corporate income tax. Stichting Administratiekantoor (STAK) A STAK is regarded as the legal owner of the assets and liabilities transferred to it, while beneficial owner - ship rests with the depositary receipt holders. As a result, a STAK has a liability to its depositary receipt holders equal to the value of the assets and liabilities it administers and it has no equity or taxable income of its own. If a STAK holds solely (portfolio) invest - ments or passive shareholdings and potentially also debts, it could be argued that the holder(s) of deposi - tary receipts are subject to tax in Box 3 on the net value of the depositary receipts, as opposed to being subject to tax in Box 3 on the economic ownership of each separate asset.
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