Netherlands (NL)

Jurisdiction Overview

IDQuestionAnswer
206 *Is any formal registration required at all? NEITHER, BUT NO DOMESTIC: Domestic law trusts cannot be created, but no registration of domestically managed foreign law trusts.
 Data Date: 2019

Notes

 
There are two possible sources for registration requirements. First, the Global Forum reports that "Pursuant to the Commercial Register Act, a foreign trust that has its statutory seat or a fixed place of business in the Netherlands or can be considered as an undertaking must be registered at the trade register. [...] The Netherlands’ administration has indicated that trusts are not registered as trusts in the Commercial Register" (GF 2011: 45). This view is confirmed in TJN-Survey 2013: "Trusts do not have to register in the Netherlands" (TJN-Survey 2013) as well as in 2017 (TJN-Survey 2017).
 
The second potential source for registration of foreign law trusts is tax law. The Global Forum claims: "For the purposes of tax law, a foreign trust that has its statutory seat or a fixed place of business in the Netherlands is considered to be resident in the Netherlands. This would include a foreign trust whose trustee is resident in the Netherlands. A foreign trust that is resident in the Netherlands is liable to corporate income tax on its worldwide income and must file a tax return." (GF 2011: 45). It remains uncertain what statutory seat or fixed place of business means and what happens if a foreign law trust has various trustees and the Dutch trustee is only one of various trustees.
 
Furthermore, this information conflicts with information in another part of the Global Forum report further down that the tax reporting obligations only apply as follows: "Provisions in the Income Tax Act also result in provision of information on trustees and beneficiaries to the Tax and Customs Administration in the tax returns of all settlors who are tax resident in the Netherlands or are nonresident but earning Netherlands-sourced income." (GF 2011: 48). These provisions are further explained as follows: "On 1 January 2010, the Netherlands enacted legislation governing the taxation of settlors and beneficiaries. Under the Income Tax Act 2010, foreign trusts are disregarded as concerns the settlor and information on the settlor and beneficiaries must be provided in the tax return on an annual basis. The settlor is subject to tax on the trust income earned from assets contributed to the trust." (ibid.: 46).
 
As a consequence, it remains uncertain, but unlikely, that foreign law trusts administered by Netherlands resident trustees, which have no Dutch source income nor settlors or beneficiaries resident in the Netherlands, would be covered by the tax return obligations or other registration/reporting obligations. We therefore conclude that no registration is required, based on two reasons: First, trade register registration is uncertain, because a) trustee may not be "statutory seat" or "fixed place of business" and b) trusts are not registered as trusts as admitted by Dutch administration. Second, the disregard of trusts for income tax purposes and treatment of settlor as being taxable for trust income only applies if the settlor submits a tax return in the Netherlands, i.e. if s/he is resident in NL, which is not the case in a classic offshore scenario. According to the Global Forum in 2019, "The legal framework applicable to trusts remain substantially the same as the one described in the 2011 Report" (GF 2019: 55).
 
In 2019 BakerMcKensie informed that transposition of the AMLD 5 for trusts would take place through a different legislation (apparently not approved as of November 2019). LoyensLoeff confirm this and describe that the UBO register for trusts will be public. However, there is no indication of which trusts will be covered (LoyensLoeff.com).

Sources

http://www.hollandfinancialcenter.com/publications//The%20Dutch%20Trust%20Industry.pdf
 
https://www.lexology.com/library/detail.aspx?g=40328183-66e4-405a-bd8f-d9db3650a3e1; https://www.bakermckenzie.com/en/insight/publications/2019/04/from-2020-dutch-businesses