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Tax Planning I Nternational BNAInternational TaxPlanning International Review lnternationallnformation for lnternationalBusinesses A MonthlyPublication of TaxPlanning Developments Tax Treaties OECD'spublic discussion draft on non-discrimination:A critical analysis. 3 RahulKrishna Mitra PricewaterhouseCoopers,India lnitialobservations on the Netherlandsand UnitedArab Emirates RichardGrotendorst recentdouble tax treaty 8 TheNetherlands In Brief tl Denmarkand Pakistan: Freight receipts taxability under tax treaty Poland and Nigeria: New double taxation treaty still awaits ratification Also in this issue New Germaninterest barrier in the caseof leveragedbuy-outs . 13 Marc P.Scheunemann Baker& McKenzie,Frankfurt Dealingwith trusts from a Germantax law perspective 19 Dr. FlorianHaase StrunkKolaschnik hrtnerschaft, Hamburg Belgium:Ataxhaven? . .21 StephanWijnkamp Henleyand Partners,Antwerp U.K.anti-hybrid rules: "Purpose" test and the clearanceprocedure. 25 Ceoffrey Kay Baker& McKenzieLLP, London In Brief . 27 Australia:Tax scheme under scrutiny Qatar: FinancialCentre Regime introduced Russia:Ministry confirms transfer pricing rules do not apply to interest-freeloans Jäiwan: Regulationson apportionmentof coststo tax-exemptincome Risk management Underthe microscopein the U.K.- Companiesat riskwith new HMRC PaulRoberts and HeatherSelf approach. 31 CrantThornton UK LLBLondon Greaterneed for lT securityto preventincreasing attacks. 32 lohn Dunne CrantThornton UK LLBLondon www.bnai.com BNA InternationalInc., a subsidiaryof The Bureauof NationalAffairs,Inc., Washington, D.C., U.S.A. Belgium:A taxhaven? StephanWijnkamp Henlevand Partners,Antwerp Belgium,which is both multicultural and multilingual, is The deductionis calculatedon the basisof a fictitiousinterest undoubtedlyone of the mostattractive European on the adjustedequity capital. This adjustedequity capital countriesto considerfor establishinga company. includesshare capital, retained earnings, surpluses on revaluation,capital subsidies and sharepremiums. Nextto itspleasant lifestyle with itsrich cultural and historicalheritage, the countryoffers an attractive The NID rate is based upon the annualaverage interest rate businessenvironment with politicaland economic for the 1O-yearBelgian Government bonds. The basicrate for stability.Belgium is well knownas The Capital of Europe the tax year 2OO8is 3.781 percent(tax year 2008 means and is oftencalled the Essenceof Europe,due to its calendaryear 2007).lf a companyqualifies as small,it willbe distinctivecharacter and for beingan importantmeeting entitledto an additionaldeduction of 0.5 oercent. pointin WesternEurope. This means that Belgiumis an A companyqualifies as smallif the followingconditions are internationallyoriented country, with legislationand fulfilled: regulationsthat are based upon this principle in many areas. I Company'sturnover does not exceed€50 million; r Belgiumis one of the 15 countriesthat form the Company'sbalance sheet total is not higherthan €43 million; Schengenarea. If you havea residencepermit for Belgium,you may apply for a SchengenVisa. This visa r The companyhas lessthan 250 employees. enablesyou to travelto all otherSchengen countries In effect,a HoldingCompany will be entitledto a deductionof without individualvisa for eachof the country. almost4 percenton the equityof the company. Surprisingly,Belgium is notwell knownworldwide as an To promotecapital equity-financing, the Belgiangovernment attractivecountry to establisha company.The same has abolishedthe 0.5 percentregistration duty on capital appliesto itsHolding Company or FinancingCompany contributions. structures. The NIDcomplies with existingE.U. law and thus offers Thisis probablydue to the factthat Belgiumalways companiescertainty. ranksat the top of the Iistof the Organisationfor EconomicCooperation and Development(OECD)for its Patent income tax rate 6.8 percent high individualand corporate tax rates. Belgiumhas recentlydecided to implementa favourable However,there are other factors that are more important regimein respectof patentincome, applicable to income than rates. derivedfrom the licensingof patentsor the use of patented products.This patent incomededuction (PlD) reduces Insteadof focusingon the tax ratesone shouldrather the tax burdenon the net incometo 6.8 percentinstead of the focuson the severaltax incentivesand tax treaties normalcorporate income rate of 33.99 percent. Belgiumhas concluded. As a resultof theseincentives andtreaties, the effectiverate will be much lowerand The Belgianruling system could be evenzero when carefully planned. As of 2003,it is possibleto consultthe tax authoritiesin order Basedupon this legislation, Belgium is an interesting to obtainan earlydecision in particularsituations. As a result, placeto livein andundoubtedly a sound choice to it is possibleto obtain 100 percentcertainty about the tax establisha company,however paradoxical it mayseem. burdenbefore actually restructuring the company.This offers advantagesespecially to multinationalsand is thereforeworth considering. Interestingfactors to consider Belgian participation exemption Notional Interest Deduction, fictitious deduction on equity In principle,there is a 95 percentparticipation exemption for dividendsreceived provided that certainconditions are met. As of January1,2006: Belgiumgrants a newtax incentjveto Oneof theseconditions is thatthe dividendsshould be paid companies:the interestdeduction for riskcapital, better by a companythat is subjectto a normaltax regime.In knownas the NotionalInterest Deduction (NlD). The NID principle,this is the case if a companyis taxed at a rate of at allowsBelgian companies and foreigncompanies with a least15 percent.When a companyis situatedwithin the Belgiantaxable branch to deduct a fictitiousinterest from their EuropeanUnion the tax rate is not relevant.The sharesin the tax base. distributingcompany must be held for one year at leastand 06/07 lax Planninglnternational Review BNA ISSN0309-7900 Belgium:A tax haven? the quantityof sharesin the subsidiaryshould not be less Basedon Europeanlegislation, Belgium has exempted the than 10 percent. withholdingtax for countrieswith which Belgium has concludedtax treaties. Capital gains on shares are tax exempt Thereare some conditionswhich haveto be met by the Capitalgains on sharesare'100 percent exempt except for corporateshareholder. The shareholderhas to be residentin a fixedincome securities. This is withouta reinvestmentcondition treatycountry and must hold at least15 percentof the shares or any othercondition. The conditionrelating to the in the Belgiansubsidiary. The sharesmust also be heldfor at participationthreshold as mentionedabove is not applicableto least12 months, capitalgains. This allowsa BelgianCompany to hold a porlfolio underfavourable conditions. When carefullyplanned, a very Thus, a corporatestructure having a DubaiCompany as a low taxationcan be achieved. HoldingCompany and a Belgiancompany for financing purposesis an exampleof a tax effectivestructure, Belgian-Hong Kong tax treaty, the gateway to Asia Belgiumhas closeda very beneficialtreaty with Hong Kong, New tax treaty between Belgium and the United States Whileusing this treaty E.U. entrepreneurs and evenU.S. The treatywith the UnitedStates has been signedbut has not entrepreneurs(in cases where the new U.S.-Belgiantreaty is taken effectyet. However,it is expectedto becomeeffective effective)active in Chinaand Hong Kong can transfertheir this year. profitsin a very beneficialway to Belgiumwhile Asian investorsin Europecan transfertheir profitstax free,without This treatyappears to be very beneficialsince undercedain anywithholding tax to Asiaor HongKong. conditions,no withholdingtax is leviedon dividends,royalties and interestbetween a BelgianHolding and a UnitedStates How does it work? subsidiaryas wellas betweena U.S.Holding and a Belgian Whendoing business in Chinaone can set up a companyin subsidiary.lt appearsto be verypromising. Combined with HongKong. This company is liableto a tax rateof 17.5 the very beneficialtreaty between Belgium and Hong Kong, percent.However, this tax rate is only applicableto profits Belgiumcould be America'sgateway to Asia. Dividendscan arisingfrom a trade, professionor businesswhich has taken be distributedwithout any withholdingtax from Hong Kong vn placein HongKong only. So whendoing business in China, Belgiumto the UnitedStates and vice versa. the taxpayeris not doing businessin Hong Kong and lndividual Taxes therefore,there will be no taxationin Hong Kong In terms of taxes,Belgium is a very interestingcountry to Inthe casewhere a BelgianHolding Company holds the consider,not onlyfor companiesbut alsofor individuals. sharesof the Hong Kong Company,the dividendsdistributed to the BelgianHolding Company will be exemptedbased Thereis no capitalgains tax on the saleof shares.Moreover, uponthe Belgianparticipation exemption. The Belgian there is no taxationon the capitalgains on the sale of shares authoritieshave stated that the participationexemption is in a fullyowned company. applicableeven if the HongKong Company is not actually taxed but only liableto a tax rate of 17.5 percent. Interestis taxed at a finalrate of 15 oercent.Dividends are taxed at a rate of 25 percent.There are insuranceproducts Furthermore,Hong Kong does not imposea withholdingtax that are not taxable,it is possiblenot to pay inheritanceor gift on dividendsdistributed to Belgium. tax, and thereis no wealthtax. Similady,Chinese companies investing in Europecan alsouse For expatriateemployees who are part
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