MLI vanaf 1 januari 2022 van toepassing op verdrag Nederland

Belgi&euml; en Nederland hebben nieuwe kennisgevingen gedeponeerd voor toepassing van het Multilateraal Verdrag. Vanaf 1 januari 2022 werken de bepalingen van het Multilateraal verdrag door in het belastingverdrag Nederland en Belgi&euml;. Bron: OESO, 25 november 2021 Het bericht van de OESO is hieronder opgenomen. De offici&euml;le notificatie van Nederland bij de OESO vindt u hier. Onder het bericht van de OESO een bericht van Lexology van 3 december 2021 over de gevolgen voor het belastingverdrag Nederland - Belgi&euml;. -------------------- Belgium, Estonia, the Netherlands and Qatar deposit new notifications under het Mulitlateral BEPS Convention 25/11/2021 &ndash; Belgium, Estonia, the Netherlands and Qatar have deposited new notifications under the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (Multilateral Convention or MLI) subsequent to their ratification: Estonia has notified, in relation to Article 35(7)(a)(i) of the MLI, the completion of its internal procedures for the entry into effect of the provisions of the MLI with respect to its treaties with Austria, Cyprus, Finland, Latvia, Poland, Slovak Republic and Ukraine in accordance with Article 35(7)(b) of the MLI; and The Netherlands and Qatar have notified additional bilateral treaties to which the MLI can apply and made additional notifications with respect to provisions of the MLI. Belgium made an additional notification with respect to its treaty with the Netherlands. The MLI entered into force for Belgium on 1 October 2019, for Estonia on 1 May 2021, for the Netherlands on 1 July 2019 and for Qatar on 1 April 2020. The new notifications made by those jurisdictions will take effect in accordance with Articles 29 and 35 of the MLI. The MLI, which covers over 1700 bilateral tax treaties, underlines the strong commitment of the 96 jurisdictions that have already joined it to prevent the abuse of tax treaties and address base erosion and profit shifting (BEPS) by multinational enterprises. The MLI has already started to impact the bilateral treaties of 67 jurisdictions that have ratified it. From 1 January 2022, it is expected to impact over 850 treaties concluded among those 67 jurisdictions, with an additional 900 treaties to become modified once the MLI is ratified by all Signatories. The text of the Multilateral Convention, the explanatory statement, background information, database, and positions of each signatory and parties are available at http://oe.cd/mli. ---------------- Netherlands and Belgium notify tax treaty under the Multilateral Instrument On November 25, the Dutch and Belgian authorities notified the Belgium-Netherlands tax treaty as a Covered Tax Agreement under the Multilateral Instrument with the OECD. The countries opted to apply a shorter period than nine calendar months for the entry into effect of the Multilateral Instrument, having the MLI enter into effect as of (financial years starting on or after) January 1, 2022. Effect on the tax treaty As the countries have both opted for a shorter period than nine calendar months for entry into effect, the following measures should enter into force as of (financial years starting on or after) January 1, 2022. At this stage, there are still several notification mismatches, as Belgium has not yet identified the relevant tax treaty provisions that should be amended. However, we expect these notifications to be put forward shortly and the notification mismatches to be remedied before January 1, 2022. Minimum standards The notification of the Belgium-Netherlands tax treaty as a Covered Tax Agreement means the minimum standards implemented by the Multilateral Instrument will also be implemented in the Belgium-Netherlands tax treaty. This means that the treaty will have modified preamble language, a principal purpose test and the improved mutual agreement procedure. Hybrid entity clause The Belgium-Netherlands tax treaty already contained two hybrid entity clauses in the protocol. However, these hybrid entity clauses will be replaced with the hybrid entity clause included in the Multilateral Instrument. Tax residency Under the Belgium-Netherlands tax treaty, the tax residence of a company is determined by its place of effective management (the corporate tie-breaker). Under the Multilateral Instrument, it is possible to change this to a tie-breaker by means of a mutual agreement procedure (the MAP tie-breaker). In such cases, the tax treaty residence of a company (and therefore access to the tax treaty) would only be determined after this has been agreed in a mutual agreement procedure. The Netherlands is in favor of including a MAP tie-breaker. However, as Belgium has made a reservation in this regard, it will not be included in the Belgium-Netherlands tax treaty. 365-day holding period The Belgium-Netherlands tax treaty does not currently have any minimum holding period for the reduced dividend withholding tax rate of 5%. Both Belgium and the Netherlands, however, have opted to introduce the 365-day minimum holding period by means of the Multilateral Instrument. Mandatory and binding arbitration The Belgium-Netherlands tax treaty does not currently contain an arbitration mechanism (only the mutual agreement procedure). However, given that Belgium and the Netherlands are both EU Member States, the EU Arbitration Convention (which only applies to transfer pricing cases) and, as of financial years starting on or after January 1, 2018, the EU Dispute Resolution Directive (which applies to transfer pricing cases and interpretation cases) already applied, under which mandatory and binding arbitration was already possible. Both Belgium and the Netherlands have, however, opted for mandatory and binding arbitration under the Multilateral Instrument as well, giving taxpayers another option for arbitration if a dispute is not settled by means of the mutual agreement procedure. Our observations The Netherlands and Belgium had previously excluded the Belgium-Netherlands tax treaty, as they were in the process of renegotiating the existing tax treaty and likely both intended to include the MLI provisions they agreed upon in a new bilateral tax treaty or protocol to the existing tax treaty. The reason for deciding to notify the Belgium-Netherlands tax treaty as a Covered Tax Agreement at this stage may be a (significant) delay in negotiations between the two countries, where there is agreement on including the minimum standards in the Multilateral Instrument and a couple of optional provisions of the MLI. As Belgium has made a large number of reservations under the Multilateral Instrument, only a limited number of optional provisions will apply to the Belgium-Netherlands tax treaty. The inclusion of mandatory and binding arbitration in the tax treaty, in addition to the mechanisms that were already available to taxpayers, is a welcome addition for taxpayers in cases where the Belgian and Dutch competent authorities cannot reach mutual agreement. DLA Piper - Jian-Cheng Ku, Philippe Hinnekens and Rhys Bane (Lexology, 3 december 2021)

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MLI vanaf 1 januari 2022 van toepassing op verdrag Nederland - België

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