NETHERLANDS LAW AND PRACTICE Contributed by: Jimmie van der Zwaan, Rob Langeveldt, Vasisthà Parmessar, Willem Koeleman and Bart-Jan Paardekooper, Borgen Tax
has been provided with all the relevant informa - tion. Obviously, the time span from start to finish depends on the complexity of the case. 7.2 Administration of Programmes The DTA and, especially, the International Tax Certainty 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 compe - tent tax inspector. Before requesting the APA, there is the possibility of a pre-filing meeting with the DTA. During this pre-filing meeting, the necessary information and the elements that are important in the specific case for the assess - ment 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 dealing 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 competency 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 have to be met in order to obtain an APA: • sufficient economic nexus in the Netherlands relating to the transactions involved; • no transactions that involve designated low- tax jurisdictions or jurisdictions that are on the EU blacklist; and • the saving of Dutch or foreign tax is not the sole or decisive motive for performing the (legal) act(s) or transaction(s). An APA request must contain relevant informa - tion and substantiate the TP methods applied. According to the amendment of the decree in 2023, the following information has to be includ - ed in an APA request: • the master file, as referred to in Section 29g of the DCITA for qualifying MNEs; • relevant financial information, information about the products and a functional analysis; • a description of the proposed transfer pricing methodology, including comparability analy - sis; • assumptions supporting the APA request; • a description of the contractual terms, busi - ness strategy and market conditions; • the financial years for which the security is requested; • confirmation that none of the directors of the company is on the EU blacklist; and • a draft standard form for the exchange of cross-border information exchanges.
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