SPDF Group Newsletter April 2019

UBO Register

Who is concerned?

UBO information should be registered in the UBO-register of the following companies and other (legal) entities incorporated/established under the laws of the Netherlands:

  • private or public companies with limited liability (besloten vennootschap met beperkte aansprakelijkheid (B.V.) respectively (naamloze vennootschap (N.V.)), excluding those with a stock exchange listing which are subjected to certain publication requirements and their 100% subsidiaries);
  • European public companies (SE), having their registered office in the Netherlands;
  • European economic interest groupings (EESV)
  • European cooperative companies (SCE), having their registered office in the Netherlands.
  • all sorts of foundations stichtingen), associations (verenigingen), formal associations, informal associations that operate a business, cooperatives (coöperaties) and mutual insurance associations (onderlinge waarborgmaatschappijen);
  • partnerships (maatschappen), commercial partnerships (vennootschappen onder firma, i.e. v.o.f.) and limited partnerships (commanditaire vennootschappen, i.e. C.V.)

Who qualifies as an UBO?

The UBO is the natural person who ultimately owns or controls a company or other (legal) entity. There can be more than one UBO. In conjunction with the (revised) administrative measure published on April 6th, 2018, at least the following natural persons are considered to be an UBO:

  • in case of a private company with limited liability (B.V.) or a public company (N.V.): natural persons who own or control such company, through holding directly or indirectly more than 25% of the shares, voting rights or ownership interest of the respective company, which includes holders of bearer shares;
  • in case of other legal entities (excluding churches): natural persons who own or control such legal entity, through (i) holding directly or indirectly more than 25% of the ownership interest in that legal entity, (ii) being able to cast directly or indirectly more than 25% of the votes required to adopt a resolution to amend the articles of association of that legal entity, or (iii) being able to de facto control that legal entity;
  • in case of a partnership: natural persons who own or control such legal entity, through (i) holding directly or indirectly more than 25% of the ownership interest in the partnership, (ii) being able to cast directly or indirectly more than 25% of the votes required to amend the agreement that governs the partnership, or in  the matter of implementation of that agreement other than by acts of administration, in so far in the agreement prescribes adopting resolutions by a majority of votes cast, or (iii) being able to de facto control that partnership.

Public information

Which information should be included in the UBO-register?

The following information regarding an UBO shall be publicly available in the UBO- register:

  • name;
  • month and year of birth;
  • country of residence;
  • nationality; and
  • nature and extent of the UBO’s economic interest.

In relation to the nature and extent of the UBO’s economic interest, only a range (>25% through 50% (exclusive), 50% through 75% (exclusive), or 75% through 100% (inclusive)) needs to be registered. In other words, no absolute numbers are registered.

Further, the Dutch Financial Intelligence Unit (FIU Nederland) and other competent authorities (which are all subject to an obligation of confidentiality) shall in addition have access to the following information:

  • day, place, and country of birth;
  • residential address;
  • if issued: the citizen service number (burgerservicenummer, BSN) and foreign tax identification number (fiscaal identiteitsnummer, TIN);
  • a true copy of a document which is used to verify the UBO’s identity; and
  • a true copy of documents substantiating why the UBO qualifies as such and showing the nature and extent of the UBO’s economic interest.

For privacy reasons, organizations that are required by law to obtain UBO information for KYC purposes, as well as journalists, researchers and civil society organizations are not granted access to this additional information.

EU Upholds Belgium’s Tax Breaks for Multinationals

The European General Court (EGC) overturned a decision by the European Commission alleging that tax breaks offered to multinational companies operating in Belgium consisted of state aid.

This case specifically pertains to Belgium’s excess profit scheme, which benefited 35 different multinational companies in the EU that purportedly earned close to 700 million Euros in state aid.

Some of the companies that gained from this scheme include British Petroleum (BP), BASF, Wabco, Cellio, Atlas Copco, Anheuser-Busch InBev NV, Coca-Cola and Proximus, among others.

The European Commission is expected to appeal this ruling with a final decision eventually being reached by the European Court of Justice.

Dutch Blacklist

Dutch State Secretary for Finance Menno Snel said: ’By drawing up its own stringent blacklist, the Netherlands is once again showing it is serious in its fight against tax avoidance.

Dutch blacklist includes:

Anguilla, the Bahamas, Bahrain, Belize, Bermuda, the British Virgin Islands, Guernsey, the Isle of Man, Jersey, the Cayman Islands, Kuwait, Qatar, Saudi Arabia, the Turks and Caicos Islands, Vanuatu and the United Arab Emirates.

BVI Offshore Financial Services

Offshore financial services companies registered in the British Virgin Islands are expected to physically set up office spaces in the territory if they are to continue doing business with/through the BVI.

That is the essence of the Economic Substance (Companies and Limited Partnerships) Bill that is currently being debated in the House of Assembly.

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