NETHERLANDS Law and Practice Contributed by: Mandeep Lotay and Dámaris Engelschman, Freshfields LLP
7.4 Other Taxes Depending on their specific nature, certain ser - vices provided to the SPE may be subject to VAT. Due to the fact that the SPE typically does not provide any services subject to VAT, the SPE will generally not be able to recover (all) VAT that it incurs. Accordingly, any such irrecoverable VAT would constitute an actual cost to the SPE. Services provided to the SPE that relate to the collection of the relevant financial assets are typically exempt from VAT unless such collection services concern non-performing receivables. Certain other services provided to the SPE may be exempt from VAT on the basis that they qual - ify as services relating to the management of special investment funds. In order for services to benefit from this exemption, however, a number of (cumulative) conditions must be met which, inter alia, relate to the applicable regulatory treatment of the SPE. This will require careful consideration based on all relevant facts and circumstances surrounding an individual secu - ritisation transaction. 7.5 Obtaining Legal Opinions It is common for practitioners to provide a tax opinion on securitisation transactions. Items typ - ically covered in such opinions cover, but are not necessarily limited to, the following: • the non-applicability of stamp duties/transfer taxes (see 7.1 Transfer Taxes ); • the corporate income tax treatment of the SPE (see 7.2 Taxes on Profit ); • the non-applicability of withholding taxes (see 7.3 Withholding Taxes ); • absence of corporate income tax liability for bond/noteholders; • the non-applicability of VAT for bond/note - holders; and
• accuracy of the tax disclosure set out in the prospectus/information memorandum. Typical assumptions/qualifications include (but are not necessarily limited to): • the arm’s length character of the transactions covered in the transaction documentation; • lack of affiliation ( gelieerdheid ) between the SPE and bond/noteholders; and • absence of nexus of the bond/noteholders with the Netherlands other than by way of holding the bonds/notes. 8. Accounting Rules and Issues 8.1 Legal Issues With Securitisation Accounting Rules Originators will typically obtain separate account - ing advice from accounting firms – for example, ensuring that, if so desired, the securitisation achieves the objective of the receivables no long - er being part of the originator’s balance sheet. 8.2 Dealing With Legal Issues As set out above, any accounting advice is usu - ally provided separately from legal advice. How - ever, at times, lawyers are asked to provide a true sale opinion which may support the conclu - sion that the receivables have truly transferred to the SPV and should no longer be part of the originator’s balance sheet. The main qualifica - tion to this opinion pertains to the originator not being bankrupt at the time of transfer.
293 CHAMBERS.COM
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