NETHERLANDS Law and Practice Contributed by: Jimmie van der Zwaan, Rob Langeveldt, Vasisthà Parmessar and Willem Koeleman, Borgen Tax
7.2 Administration of Programmes The DTA and, especially, the International Tax Cer - tainty Team administer the APA programme, which concerns agreements on the pricing of intercompany transactions for future years. If a taxpayer wishes to obtain an APA, a request has to be filed with the local competent tax inspector and the International Tax Certainty Team. The International Tax Certainty Team carries out the procedure in consultation with the local competent tax inspector. Before requesting the APA, there is the possibility of a pre-filing meeting with the DTA. During this pre-filing meeting, the neces - sary information and the elements that are important in the specific case for the assessment of the APA request are discussed. Regarding settlement agreements and current and prior-year TP issues, the co-ordination of transfer pricing within the DTA is in the hands of the Transfer Pricing Co-ordination Group. Tax inspectors within the DTA have to seek (binding) advice from a member of the Transfer Pricing Co-ordination Group when deal - ing with transfer pricing matters. This creates a unity of policy and application of the transfer pricing rules. 7.3 Co-Ordination Between the APA Process and Mutual Agreement Procedures In practice there is co-ordination between the APA process and MAPs, however MAPs fall with the com - petency of the Ministry of Finance and the DTA while APAs are co-ordinated through the DTA. Furthermore, in the new decree concerning the MAP, it is stipulated that the information to be included in a request for a bilateral APA or a multilateral APA is the same as the information to be provided in a request for a unilateral APA. If a request for a bilateral APA is filed, it is neces - sary to also file a request for a unilateral APA at the same time. 7.4 Limits on Taxpayers/Transactions Eligible for an APA According to the Decree of 28 June 2019, Stcrt No 2019/13003, three requirements must be met to obtain an APA: • sufficient economic nexus in the Netherlands relat - ing to the transactions involved;
exceptional situations this may be restricted to years for which tax returns have already been filed. Participation by the Netherlands is conditional on a sufficiently significant Dutch footprint and material revenues in the participating jurisdictions relative to the group’s global turnover. The outcome of the pro - cess does not include an explicit low-risk rating, but the tax authority may provide comfort that no compli - ance actions are planned or expected for the covered periods, subject to clearly stated assumptions such as unchanged transfer pricing policies and legislation. For roll-forward years, the multinational enterprise is expected to proactively inform the local account team of any relevant developments that could affect the ICAP conclusions. ICAP offers several options for issue resolution. In limited cases, agreement may be reached on matters relating to filed tax years. Certainty for future years can only be obtained through a unilateral or bilateral APA, although information gathered during ICAP can be reused for that purpose. Where issues cannot be resolved within ICAP, follow-up compliance actions may be initiated by the local account team. 7. Advance Pricing Agreements (APAs) 7.1 Programmes Allowing for Rulings Regarding Transfer Pricing The Netherlands has a programme that allows APAs. The rules and procedures for obtaining an APA are set out in the Decree of 28 June 2019, Stcrt No 2019/13003 for rulings with an international character and its latest amendment – Decree of 19 December 2023, Stcrt No 2023, 25745. Bilateral and multilateral APA programmes are also implemented in the Nether - lands through the above-mentioned decrees. The DTA aims to issue a decision on an APA request between six and eight weeks after it has been pro - vided with all the relevant information. Obviously, the time span from start to finish depends on the com - plexity of the case.
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