Bermuda? The Cayman Islands? Nope, the Netherlands!
Barack Obama had only been in office for a few weeks when he first tried to take on tax havens. The freshly inaugurated U.S. president wanted greater transparency, harsher penalties and more justice. Obama, who had helped draft anti-tax haven legislation – to date, still not passed – as an Illinois senator, called out many tax havens by name. There were the usual suspects: Bermuda, the Cayman Islands and Switzerland. But there was also, to the surprise of many, the Netherlands.
A founding member of the European Union, quaint little Holland has for years been the most important tax haven for American corporations. This includes large multinationals such as the coffee chain Starbucks, the delivery company FedEx, the pharmaceuticals giant Pfizer and – as the Paradise Papers have revealed – the sporting apparel manufacturer Nike and the electric carmaker Tesla. Every year, other countries lose out on billions of euros in taxes for the apparent reason that the Netherlands has bent to the will of influential lobbyists while neighboring EU member states have stood idly by and done nothing. Experts accuse the country of providing illegal state subsidies, and the European Commission is alarmed, but the Dutch tax loophole will nevertheless remain open for years to come.
One of the most important days for the Netherlands as a tax haven was July 6, 2005. That was the day that Paragraph 4 of Article 24 – the so-called anti-abuse clause – was struck from the U.S. tax convention with the Netherlands, effectively legalizing the abuse of Dutch corporate law.
The Netherlands has found the "Holy Grail of tax avoidance”
The Netherlands’ tax loophole revolves around a business structure known in Dutch as a commanditaire vennootschap, or CV, the Dutch version of a limited partnership. In a CV, just like in a limited partnership, two or more people can join together for business purposes. One of the partners, namely the limited partner, is only liable for a fixed amount, while the other, the general partner, is fully liable.
In contrast to Germany, CVs are not regarded as taxable entities in the Netherlands, but solely as partnerships. In the eyes of the Dutch tax authorities, it’s not the CV itself that’s responsible for paying taxes, but the individual partners.
This is where things get interesting, especially for American companies. By founding a CV in the Netherlands plus one or two Dutch subsidiaries, U.S. firms reach “the Holy Grail of tax avoidance.” That’s how Senator Carl Levin once put it while still in office, describing the complex networks of companies that allow their owners to completely avoid taxes.
If an American company is one of the partners in a Dutch CV, the Netherlands assumes that the CV partner's profits are taxed in the U.S. The American tax authorities, however, view the Dutch CV as a taxable entity itself. The upshot is two countries with two different opinions – and nobody paying taxes. All to the delight of companies like Nike, Starbucks, Pfizer, Tesla and dozens of others.
Why does the Netherlands do such a thing? The country, after all, doesn’t earn much of anything from the commanditaire vennootschap setup. It’s usually just a shell company, with nothing inside. That said, the authorities do require some substance for the structure to be approved. For this reason, many such shell companies have a besloten vennootschaap (BV) as a subsidiary. Through this form of limited liability company, the Netherlands creates a few new jobs and collects a modest amount of taxes. The damage to other countries, however, is enormous.
The U.S. misses out on hundreds of millions of dollars every year thanks to the Dutch tax loophole
Nearly 500 billion euros in profits have flowed into the Netherlands since the tax convention was established, according to the Dutch news website Click here to read the article from De Correspondent De CorrespondentClick here to read the article from De Correspondent . A look in the Dutch Business Register reveals numerous CVs with foreign addresses. The U.S. leads the way with 162 such companies, followed by Switzerland and Bermuda. And this is presumably only a fraction of the total number, because CVs don’t have to be registered.
In 2015, more than half of the 500 largest American companies had at least one CV in the Netherlands, according to Click here to read the “Offshore Shell Games 2016” report from the Institute on Taxation and Economic Policy.a report from the Institute on Taxation and Economic PolicyClick here to read the “Offshore Shell Games 2016” report from the Institute on Taxation and Economic Policy.. No other tax haven had more.
Is this all just an accident? A legal loophole that no one has noticed? A decision by parliament, the consequences of which no one foresaw?
Internal Netherlands government documents, obtained by De Correspondent through a hard-fought Dutch Public Access to Government Information Act request, show that the responsible parties are fully aware of what they’re doing. The director of international tax affairs in the Dutch parliament warned his colleagues: “This tax relief will enable American multinationals to enjoy an enormous and improper competitive advantage.” He continued: “As a result [the Netherlands] will be underwriting the takeover of its own business community by the American one.”
Despite these warnings, nothing happened. Joop Wijn, the state secretary for finance at the time who went on to become economic affairs minister, abolished many hurdles aimed at preventing malfeasance. In a memo that was recently made public, he underlined the sentence: “The Netherlands need not serve as the world’s (tax) inspector.” Next to it, he wrote the Dutch word, “Juist.” Precisely.
For someone whose job it is to ensure the highest possible tax revenues, this is a rather strange view to hold. But what’s even stranger is the behavior on the American side. The U.S. misses out on hundreds of millions of dollars every year thanks to the Netherlands’ tax loophole. “We are happy to have you guys give better treatment to our companies,“ an employee of the U.S. Treasury Department wrote in an email to a Dutch colleague in spring 2005. But the Europeans should please not expect the Americans to “do the same for your companies.” Clark Gascoigne, the deputy director of the FACT Coalition, an American NGO that advocates for fair taxation, said he felt the business lobby has emerged victorious over the interests of the American people. For years, he said, the U.S. government has been an accomplice to big tax-avoiding corporations.
The Dutch tax loophole is also a triumph for the American Chamber of Commerce, one of the most powerful lobbying groups in the Netherlands. “AmCham” regularly throws lavish parties, inviting former and current prime ministers, cabinet members and party leaders. The Dutch finance minister hosts a delegation from AmCham multiple times a year, and representatives of large American companies, such as Nike, are usually present. Internal ministry documents show that they make their comments – one could also say wishes – known regarding issues such as capital regulations.
Meanwhile, the number of registered CVs grows year after year, almost doubling from 696 in 2013 to 1,325 in 2016. “The Netherlands is an underestimated tax haven,” said Fabio De Masi, a German parliamentarian with the Left Party and a former member of the European Parliament. “They deprive other EU states of billions in taxes that we desperately need for public investments in infrastructure.” The Finance Ministry in The Hague said in response to a request for comment by the Süddeutsche Zeitung that international tax avoidance could not be blamed on a single country’s tax system, adding that it considered the BV-CV system to be legal.
To be sure, the Dutch government has reached an agreement with the European Commission to close the tax loophole – but as things currently stand, that won't happen until 2020. American companies have another two years plus to legally keep millions away from tax authorities. “It’s preposterous that American corporations park billions in profits tax-free in Dutch companies and that the Dutch government then also fights to maintain this scam against the common welfare for as long as possible,” said Sven Giegold, a German member of the European Parliament with the Green Party. He added that the obstruction by Eurogroup head Jeroen Dijsselbloem, who also served until the end of October as Dutch finance minister, wasn’t worthy of his Labor Party. Instead of “keeping open possibly the world’s largest corporate tax loophole” for American corporations and being a “lackey for Trump’s plans for (overseas) profit repatriation,” Giegold said Dijsselbloem should push for increased cooperation among European tax authorities.
For American companies using the Dutch tax loophole, the agreement between the government of the Netherlands and the European Commission is apparently not an insurmountable problem. “In informal talks between [the ministry] and AmCham, we have agreed that AmCham will suggest alternatives to the current mismatch arrangement to have in reserve,” the American Chamber of Commerce wrote back in 2014, according to internal emails from the Dutch Finance Ministry. The term "hybrid mismatch" is often used in financial circles to describe the CV-BV tax structures. Informal discussions had apparently already taken place. The emails continued: “AmCham will deliver these alternatives and discuss them with the ministry.” When contacted for a response, the lobby organization answered, “We’d like to wait and see for the new Dutch government and their plans (sic).” AmCham added that it would prefer to talk to the new administration before going on the record.
And contacts remain excellent. Joop Wijn, the politician with the conservative Christian Democrats who, according to his critics, initially made the loophole possible and then expanded it piece by piece, first as state secretary for finance and then as economic affairs minister, received an award from AmCham in 2006 for his tax cuts. In 2012, six years after Wijn stepped down as state secretary, his life partner Patrick Mikkelsen was appointed director of AmCham in the Netherlands – as a representative of the very companies that profited the most from the tax loophole. When asked, both men denied any correlation between Wijn’s politics and Mikkelsen’s appointment.