The Fund has opted for the status of Fiscal Investment Institution (FII). Although an FII is not transparent for tax purposes the FII regime is based on the principle of tax transparency. This transparency is effectively realized by the fact that an FII is subject to Dutch corporate income tax at a rate of 0% in combination with the so-called distribution obligation (for more information see the distribution obligation section below). As a result any benefits derived from a shareholding in an FII are taxable at shareholder level only.
To benefit from the FII regime, the Fund must meet certain requirements regarding, inter alia, the aforementioned obligation to distribute its profits, its activities, its leverage and its shareholders. These requirements are outlined in greater detail below.
Because of the fiscal transparency principle, an FII must distribute 100% of its taxable profits within eight months after the end of the relevant fiscal year, with the exception of certain specific items. In practice, the company-only net rental income and net finance income, is distributed annually. Capital gains, either realised or unrealised, do not need to be distributed. Unrealised capital gains do not constitute taxable income whereas realised capital gains are added to a so-called reinvestment reserve. Part of the management costs need to be charged against the reinvestment reserve. If and to the extent that realised gains are added to the reinvestment reserve, such gains are treated as capital for dividend withholding tax purposes, rather than distributable profits (for more information see the dividend withholding tax section).
An FII is obliged to be engaged exclusively in passive investment activities, i.e. it may not (partly) conduct an active trade or business. Whether an activity is characterised as a passive investment activity or as a business activity for Dutch tax purposes depends on all relevant facts and circumstances.
Real estate development is not regarded as a ‘passive’ investment activity. However, development activities for the FII’s own portfolio are specifically permitted. These activities should be carried out by a subsidiary which is subject to tax at the common corporate tax rate (2018: 25%). Improvements to existing properties do not qualify as development activities provided that the capital expenditure is less than 30% of the value of the property as determined by the Dutch Valuation of Immovable Property Act (Wet Waardering onroerende zaken) prior to the improvements.
In addition activities that are auxiliary to the Fund’s passive investment activities (renting out of the Fund’s real property) are under conditions permitted, provided that they are also carried out by a taxable subsidiary of the Fund.
The Fund avails of both a taxable subsidiary for development activities as a taxable subsidiary for auxiliary services.
An FII may finance its investments with debt up to a maximum of 60% of the fiscal book value of the real estate property, plus 20% of the fiscal book value of all other investments.
As the Fund is subject to supervision of the AFM due to Bouwinvest’s AIFMD license as an alternative investment fund manager, the Fund is subject to the shareholder requirements for regulated FIIs. The shareholder requirements for regulated FIIs stipulate that:
A single corporate entity which is subject to any form of profit tax, not being a regulated FII or an UCITS, or an entity whose profits are taxed in the hands of its participants, i.e. a tax transparent entity, may not own 45% or more of the shares together with such affiliated entities.
A single individual may not own an interest of 25% or more.
Furthermore, all FIIs must meet the condition that their shares are not owned for 25% or more by Dutch resident entities through the interposition of non-Dutch entities which have a capital divided into shares or mutual funds.
The Fund met the requirements of an FII in 2018. The effective tax rate was 0% (2017: 0%).
In 2017 the Dutch government announced new legislation abolishing the Dutch dividend withholding tax and no longer allowing FII’s to directly invest in Dutch real estate. As a result the Fund should be restructured to avoid negative tax consequence to the extent possible. However 15 October 2018 the Dutch government announced that the dividend withholding tax would not be abolished and that, as a result, the FII-regime would not be amended. So the legal structure of the Fund will not have to be converted.
Dividend withholding tax
Profit distributions by the Fund are subject to Dutch dividend withholding tax at the statutory rate of 15%. However, distributions made from the tax free reinvestment reserve are not subject to Dutch dividend withholding tax, provided that this is properly formalized.
In 2018 Bouwinvest settled the transfer pricing dispute with the Dutch Tax Authorities with respect to the redevelopment of the assets “Damrak” and “Nieuwendijk” in Amsterdam. Both assets are owned by the Retail Fund. Parties agreed on a taxable development profit of € 24.0 million to be assessed with Retail Development BV, a 100% subsidiary of the Bouwinvest Retail Fund NV.