The Dutch government has informed the House of Representatives of its intention to apply certain anti-avoidance principles in the context of COVID-aid. In addition to a previously announced assessment framework, two fiscal conditions for eligibility for individual COVID-aid are explained in this document. We have provided an unofficial translation of the letter for your perusal. Additionally, Thom shares his views, below.

There has been considerable debate over the last several months concerning (state) aid being provided to companies that have been hit by the COVID-crisis. The debate covers (relatively indiscriminately) the provision of generic support, as well as specific (individual) aid to vital companies. Further to a previously set assessment framework for the individual ‘support’, the government has set out additional fiscal considerations and conditions in a letter dated 19 June 2020 (‘the Letter’). On that same day, an English announcement was published, summarising the content of the Letter (‘the Summary’). Following the initial stop-gap measures to prevent an overall ‘collapse’ of the economy, the debate regarding fiscal measures has evolved and can be broadly divided into two topics. The first is whether the myriad of generic fiscal facilities available to companies and entrepreneurs (such as wage-subsidising and extension of payment deadlines) is applied liberally enough. The second topic is whether larger companies should even be eligible for such support. 

Setting

This latter discussion primarily focuses on large (multinational) corporations and whether they should even be eligible for generic COVID-support, with the Dutch airline company KLM arguably bearing the brunt of the public outrage. In recent years, public opinion appears to have turned against multinational entities, with many people’s sentiment ranging form ‘sceptical’ do ‘downright ticked off’ with what they perceive as greedy, government-supported cash grabs by large corporations. This sentiment has not improved with recent moves to support companies that are considered either critical to the Dutch economy (or simply ‘too big to fail’), while other companies or entrepreneurs did not fall within the scope of generic support. This perceived injustice has fueled the fire of indignation, and may have driven the government to take a more nuanced public stance on the matter than planned.

Framing

First of all, credit where credit is due: it is good to see the government actively address the issue, and noteworthy that they took the effort of providing an English statement too. However, and without going into too much detail with regard to the legitimacy of the public opinion and the argumentation put forward by the government, the government does appear to aim to placate public sentiment by publishing this letter. The framing of publications, both by the government and the media, was initially particularly positive. For example, the title of the article summarising the measures (Companies receiving government support must abandon undesirable tax avoidance practices). This is quite a bold statement, considering the ‘ifs and buts’ included in the actual Dutch letter, and the (minimal) legal status of the Letter. Additionally, the letter does not cover the generic measures that are expectedly at the root of the public debate, but only concerns specific, individual aid to “exceptional cases”, to “safeguard the public interest”. Both the targeted companies (utilities, infrastructure), the aid (expectedly in the form of loans and guarantees rather than ‘a bag of cash’) and the scope of the measures (more likely a handful of companies than large numbers or groups) may well be misunderstood by the public.

Tax matters are, however, inherently complicated, and hard to communicate to a broader audience. Also, one can hardly take offence at a certain level of positive framing in these trying times, and some nuances will always be lost. The broader message of tackling tax evasion will resonate with the public, even if it is aimed at a different target than the ‘evil corporations’.

Status and nature of the Letter

It is important to note that the letter itself is not an actual law or regulation. It is an explanatory note from the government (Minister and Secretary of State) to the House of Representatives, further describing the considerations that will be taken into account in assessing requests for individual COVID-aid. Presumably, there will be an element of negotiation in this assessment, on top of the tentative and relatively non-committal wording of the Letter. I would therefore characterise it as a good description of the government’s overall sentiment, with a lot of wiggle-room included. Any (external) call for strict compliance (by the government or taxpayers) with the positions taken in the Letter would be relatively easily countered by citing negotiatory compromise, new insights or corporate confidentiality.

Wording

A number of elements of the Letter and the Summary are of particular interest from a linguistic and fiscal point of view. In addition to our remarks in the text of our translation, and at the risk of being overly fastidious, I would like to mention the following points specifically.

  • support
    The Summary mentions ‘support’ rather than ‘aid’. Although I doubt any particular significance should be awarded to this wording, it is important to note the implications of individual support in the context of state aid. The EU has already indicated a certain level of leniency for COVID state aid, but any individual ‘support’ will still need to be reported to the EU (as is the case with non-COVID state aid).
  • establishments
    The Dutch vestigingen in the Letter is translated in the Summary as ‘establishments’. Neither term is expressly defined, and from a fiscal point of view neither the Dutch original phrase nor the English translation offers much support in how to interpret the term. This is the kind of potential obscurity that I would normally expect to be specifically dealt with in the final version of legislation; however given the ‘informative’ nature of this Letter, it would have been preferable to be clear from the start.
  • 12-month restructuring period
    The government optimistically states they expect “these measures will lead to an adjustment of the business structure by the company”. To this end, an eligible company in immediate trouble may be offered 12 months to ‘clean up their act’ if one of the two conditions for aid is not met. The wording is however sufficiently tentative that the question remains whether this will lead to permanent and ‘real’ changes, or just temporary cosmetic adjustments.

Additionally, the Summary quotes the Secretary of State as saying “But at a time like this, it would be inappropriate to ask for taxpayers’ money while avoiding paying tax”. This appears to be a (paraphrased) translation of part of the fourth paragraph of the Letter. However, the Letter itself does not refer to ‘taxpayers’ money’ in this context, but rather to ‘support which is financed from tax revenue’. The difference is subtle, but important: by referring to ‘taxpayers’ money’, an uninformed reader may easily assume the quote is referring to the generic supports (cash handouts) rather than individual support (expectedly guarantees and loans). I dare not say whether this wording was conscious phrasing or not.

In conclusion

In addition to the short English Summary provided by the government, we have made an (unofficial) translation of the source (the Dutch Letter to the House of Representatives) for your perusal. Should an official translation be published, it would be interesting to see if the specific wording adds anything in the form of contextual interpretation and clarity. Additionally, I have compared a number of phrases in the English Summary to the source text, described some of the overall context for non-Dutch readers, discussed a number of (con)textual obscurities and offered my thoughts on several fiscal considerations. Personally, I am still on the fence as to whether this Letter is a) an attempt to placate public opinion, b) a brief but sincere insight into the intended decision-making process, or c) a final warning for companies using tax structures. Let us hope it is a well-intended combination of these three possibilities.

The views and opinions presented above are those of the author, and should not be interpreted as definitive conclusions or specific advice.

We are very pleased to announce that Anna Gunn has been awarded the Jaap van den Berge-Literatuurprijs for her contribution to tax law in the Netherlands. To mark the occasion, NLFiscaal has published a collection of columns and articles written for her website Artikel104.nl. The title of the book is Anders: Gunn, which is a recurrent footnote in other peoples’ work and translates as In the alternative: Gunn or Contra: Gunn.

“People just seem to disagree with me! Of course I’m proud (if slightly surprised) to win this prize. Artikel104.nl is a progressive and rather critical website, which might not be to everyone’s taste. The tax sector is often quite conservative. I’ve always tried to speak truth to power, in a meaningful way. We cover Dutch, EU and international tax law, and also the fiscal culture wars. Ethics is a big part of this. My work has always been constructive, offering solutions as well as new perspectives. The tax landscape has been shifting for some time now and in the wake of BEPS, the area of ethics is becoming increasingly important. Everyone from the universities to the Big Four is grappling with the topic at the moment. I like to think that Artikel104.nl is ahead of the curve.” – Anna Gunn

The book will be available at the award ceremony on 6 February 2020, 16:30 – 18:00, Nieuwspoort in The Hague.