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On 8 July 2016 the Dutch Supreme Court referred questions for a preliminary ruling to the European Court of Justice (ECJ), asking whether certain elements of the Dutch fiscal unity regime should also be available to Dutch resident companies with a 95 percent or more EU resident parent, subsidiary or sister company which can not be part of a Dutch fiscal unity due to the geographical restrictions of the fiscal unity regime. The cases at hand relate to the application of a specific anti-abuse rule on interest deductions and the non-deductibility of foreign exchange losses in relation to a subsidiary. The ECJ can take up to two years time to issue the final ruling. In the meantime, companies are encouraged to assess whether any fiscal unity related tax advantages have been unavailable to them, only because of the fact that the Dutch fiscal unity regime is restricted to Dutch resident companies and therefore an EU resident parent, subsidiary or sister company could not be included in a fiscal unity. A (non exhaustive) list of examples of such advantages includes:

  • Non applicability of interest deduction limitation rules;
  • Deductibility of foreign exchange losses arising from foreign participations;
  • Non applicability of liquidation loss limitation rules;
  • Non applicability of holding loss ring-fencing rules;
  • No recognition of income and capital gains on transactions within a fiscal unity;
  • Non applicability of certain restrictions in the innovation box regime
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