NETHERLANDS Law and Practice Contributed by: Nathalie Idsinga and Mignon de Wilde, Arcagna
For Box 2 substantial interests, if properly structured – through its articles of association and trust condi - tions – a STAK is considered fully transparent for tax purposes. In this case, the depositary receipts are fully assimilated to the underlying assets. However, if the trust conditions no longer allow the underlying assets to be identified with the depositary receipts, a deemed transfer of assets may be recognised for Dutch tax purposes. 3.4 Tax Consequences of Fiduciary and Beneficiary Roles This is not applicable in Netherlands. In the Netherlands, a STAK (see 3.1 Types of Trusts, Foundations or Similar Entities ) is frequently used in estate planning, for example, to safeguard the conti - nuity of a family business. By transferring shares in the family business (typically the top holding company) to a STAK in exchange for the issuance of depositary receipts, beneficial ownership is effectively separat - ed from legal ownership. This structure enables the transfer of economic ownership to the next genera - tion (for example, by gifting depositary receipts) while retaining control over the family business through the STAK board. The transferor can further safeguard the continuity of the family business by making specific arrangements concerning the composition and pow - ers of the STAK’s board after stepping down as a board member. 4.2 Succession Planning 4. Family Business Planning 4.1 Asset Protection The Inheritance Tax Act 1956 and the Personal Income Tax Act 2001 provide a tax facility for the transfer of business assets and substantial shareholdings repre - senting business assets as part of business succes - sion: the business succession facility ( bedrijfsopvolg- ingsfaciliteit or BOR). Dutch personal income tax may be (partially) deferred if certain requirements are met. Deferral is only avail - able for: • the transfer of business assets (Box 1); and
• substantial shareholdings representing business assets (Box 2). For both categories, the main requirement is that the successor is at least 21 years old at the moment of the transfer. For inheritances, there is no minimum age to utilise the BOR. Subject to strict conditions, the following inheritance and gift tax features apply to such transfers. Up to EUR1,543,500 (2026) of the value of a business may be conditionally exempt from tax. For the portion exceeding EUR1,543,500, payment of tax may be conditionally deferred for up to ten years. One of the conditions is that the business must be continued for at least three years after the gift or the death of the deceased. 4.3 Transfer of Partial Interest For Dutch income tax, gift tax and inheritance tax pur - poses, a partial interest in an entity must be valued at no less than its fair market value at the time of transfer. A taxpayer may apply a discount for lack of market - ability and control, for example, if the shareholding constitutes a minority interest or is subject to a right of first refusal ( aanbiedingsregeling ). A blocking clause ( blokkeringsregeling ) in the articles of incorporation is generally not considered relevant for valuation pur - poses. It should be noted that case law on this issue is highly fact-specific. Whether a discount can be applied depends heavily on the particular facts and circumstances and is often a subject of discussion with the Dutch tax authorities.
5. Wealth Disputes 5.1 Trends Driving Disputes
In general, the number of disputes concerning Dutch inheritance law remains limited, although it is increas - ing. This is largely attributable to the involvement of civil law notaries in drafting wills and marital agree - ments. When interpreting wills and marital agree - ments, the parties’ intention at the time of drafting should be taken into account. Civil law notaries play a key role in clarifying these intentions and providing context.
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