Bijlage 1
[Regeling vervallen per 21-08-2010 met terugwerkende kracht tot en met 13-08-2010]
1st copy for the American tax authorities
[Regeling vervallen per 21-08-2010 met terugwerkende kracht tot en met 13-08-2010]
1st copy for the american tax authorities
This form (hereafter referred to as form ‘IB 93 USA’) may be filled in by the beneficial
owner of items of income from US sources (in the following: ‘the applicant’) to demonstrate
to the withholding agent (unless that agent has actual knowledge or reason to know
otherwise) and to the US tax authorities that the conditions of article 26, and, if
appropriate, those of article 12, paragraph 8, or article 13, paragraph 6, of the
Convention of 18 December 1992 between the Netherlands and the United States of America
for the avoidance of double taxation are satisfied and that the applicant is entitled
to the benefits of the Convention.
Important!
Before filling in this form, please read the instructions on the back of the fourth
copy.
Note: this form is intended only for residents of the Netherlands other than
-
– individuals (article 26, paragraph 1, subparagraph a of the Convention)
-
– the State or a political subdivision thereof or a local authority thereof (article
26, paragraph 1, subparagraph b of the Convention).
NB: The flow chart in annex I to form ‘IB 93 USA’, parts I -X is simplified version
of the text of article 26. The flow chart in annex I to form ‘IB 93 USA’, part XI
is based on the text of article 12, paragraph 8, and article 13, paragraph 6, of the
Convention. Please consult the flow chart in annex I to form ‘IB 93 USA’ and the full
text of the Convention when filling in this form. Any further questions can be addressed
to the Inspector in whose jurisdiction the applicant is a resident. Data of the immediately
preceding taxable year may be used when filling in this form, unless the applicant
knows or has reason to know that changes will occur or have occurred in the facts
and circumstances during the taxable year under consideration, which changes might
affect the issuing of a statement for the taxable year under consideration.
Please do not forget to fill in the list of estimated annual amounts of United States
source passive income for which treaty benefits are claimed. This list is attached
to the first copy of this form.
1. Full name, address, telephone number and ‘Landelijk Vast nummer’ (fiscal number)
of applicant:
...............................................................
...............................................................
(in capital letters)
2.
-
a. o. The applicant does not meet one of the tests laid down in paragraphs 1 through 6 of
article 26 (see question 4), but instead has obtained a favourable determination from
the US competent authority for the application of the safety-valve provision laid
down in article 26, paragraph 7, of the Convention. (See point 3 of the instructions
on the back of the fourth copy)
Go to question 3.
-
b. o. A previous statement was issued for the applicant by the competent Dutch Inspector
stating that the conditions of article 26 and, if appropriate, the conditions of article
12, paragraph 8, or article 13, paragraph 6, of the Convention are satisfied.
Go to question 3.
-
c. o. The applicant has not obtained a favourable determination from the US competent authority
for the application of the safety-valve provision, nor was a previous statement issued
for the applicant by the competent Dutch Inspector. Go to question 4.
(please tick as appropriate)
3. Have there been any important changes in facts and circumstances since the date
on which the previous statement was issued by the competent Dutch Inspector, or, if
no such previous statement was issued, since the favourable determination has been
obtained from the US competent authority, which could affect the issuing of a (subsequent)
statement, or which could affect the test on which the issuing of a statement has
been, or will be, based? (Please tick as appropriate)
-
o No. In the situation where a previous statement was issued by the competent Dutch
Inspector, please tick questions 4 and/or, if appropriate, question 5 of this form
in the same manner as was done in the form requesting the issuing of the previous
statement.
-
o Yes. Go to question 4 and, if appropriate, 5 (See however point 4 and 5 of the instructions
on the back of the fourth copy)
4.
The applicant satisfies the conditions as laid down in article 26 of the Convention
in:
(Please tick as appropriate)
|
o
|
Paragraph 1, subparagraph c, i
|
(direct stock-exchange test)
|
See part
|
I.
|
|
o
|
Paragraph 1, subp. c, ii or iii
|
(indirect stock-exchange test)
|
See part
|
II.
|
|
o
|
Paragraph 1, subparagraph c, iv
|
(indirect stock-exchange test for conduit companies)
|
See part
|
III.
|
|
o
|
Paragraph 1, subparagraph d
|
(shareholder test)
|
See part
|
IV.
|
|
o
|
Paragraph 4,
|
(EC shareholder test)
|
See part
|
V.
|
|
o
|
Paragraph 1, subparagraph e
|
(exempt organisations)
|
See part
|
VI.
|
|
o
|
Paragraph 2
|
(activity test)
|
See part
|
VII.
|
|
o
|
Paragraph 3
|
(head-office test)
|
See part
|
VIII.
|
|
o
|
Paragraph 6
|
(test for shipping and air transport companies)
|
See part
|
IX.
|
5. The applicant satisfies the conditions of one of the tests mentioned under question
4, or has obtained a favourable determination from the US competent authority for
application of the safety-valve provision (question 2), and derives interest of royalty
income from the United States of America that is:
(please tick as appropriate)
-
a. o. not attributable to a permanent establishment of the applicant in a third state and
thus not subject to tax in the United States of America, or
-
b. o. attributable to a permanent establishment of the applicant in a third state and not
subject to tax in the United States of America, since the applicant, in the case of
interest income, satisfies the conditions of article 12, paragraph 8, and, in the
case of royalty income, satisfies the conditions of article 13, paragraph 6, of the
Convention, or
-
c. o. attributable to a permanent establishment of the applicant in a third state and subject
to tax in the United States of America at a rate of no more than 15 percent, since
the applicant, in the case of interest income, does not satisfy the conditions of
article 12, paragraph 8, respectively, in the case of royalty income, does not satisfy
the conditions of article 13, paragraph 6, of the Convention.
Place .......................................
Date ..............................................
Signature of the applicant
...............................................................
(do not write below this line)
Statement by the competent dutch inspector
[Regeling vervallen per 21-08-2010 met terugwerkende kracht tot en met 13-08-2010]
I state that, to the best of my knowledge, the above information, the attached list
of the applicable statements and of the actual documentation reviewed, and the facts
and circumstances which have been presented to support this statement are correct
and adequate. This statement is valid only for the whole of the calendar year 19 .
However, it will become invalid at the moment that during this calendar year a change
in facts or circumstances causes the applicant to be entitled to the treaty benefits
no longer.
Date: .................................................
Signature: ..........................................
(Stamp)
List of estimated annual amounts of United States source passive income for which
treaty benefits are claimed
Passive income information
(please tick as appropriate)
Type of passive income expected to be derived from the United States during the calendar
year for which this form ‘IB 93 USA’ has been issued.
-
0 Dividends
Estimated annual amount
-
0 Interest
Estimated annual amount
-
0 Royalties
Estimated annual amount
Types and amounts of passive income received from the United States during the calendar
years preceding the calendar year for which this form ‘IB 93 USA’ has been issued
and for which treaty benefits were claimed:
|
Year
|
Type
|
Amount
|
|
The third preceding year
|
Dividends
|
$
|
| |
Interest
|
$
|
| |
Royalties
|
$
|
|
The second preceding year
|
Dividends
|
$
|
| |
Interest
|
$
|
| |
Royalties
|
$
|
|
The first preceding year
|
Dividends
|
$
|
| |
Interest
|
$
|
| |
Royalties
|
$
|
2nd copy for the person liable to withhold tax
[Regeling vervallen per 21-08-2010 met terugwerkende kracht tot en met 13-08-2010]
2nd copy for the person liable to withhold tax
This form (hereafter referred to as form ‘IB 93 USA’) may be filled in by the beneficial
owner of items of income from US sources (in the following: ‘the applicant’) to demonstrate
to the withholding agent (unless that agent has actual knowledge or reason to know
otherwise) and to the US tax authorities that the conditions of article 26, and, if
appropriate, those of article 12, paragraph 8, or article 13, paragraph 6, of the
Convention of 18 December 1992 between the Netherlands and the United States of America
for the avoidance of double taxation are satisfied and that the applicant is entitled
to the benefits of the Convention.
Important!
Before filling in this form, please read the instructions on the back of the fourth
copy.
Note: this form is intended only for residents of the Netherlands other than
-
– individuals (article 26, paragraph 1, subparagraph a of the Convention)
-
– the State or a political subdivision thereof or a local authority thereof (article
26, paragraph 1, subparagraph b of the Convention).
NB: The flow chart in annex I to form ‘IB 93 USA’, parts I -X is simplified version
of the text of article 26. The flow chart in annex I to form ‘IB 93 USA’, part XI
is based on the text of article 12, paragraph 8, and article 13, paragraph 6, of the
Convention. Please consult the flow chart in annex I to form ‘IB 93 USA’ and the full
text of the Convention when filling in this form. Any further questions can be addressed
to the Inspector in whose jurisdiction the applicant is a resident. Data of the immediately
preceding taxable year may be used when filling in this form, unless the applicant
knows or has reason to know that changes will occur or have occurred in the facts
and circumstances during the taxable year under consideration, which changes might
affect the issuing of a statement for the taxable year under consideration.
1. Full name, address, telephone number and ‘Landelijk Vast nummer’ (fiscal number)
of applicant:
...............................................................
...............................................................
(in capital letters)
2.
-
a. o. The applicant does not meet one of the tests laid down in paragraphs 1 through 6 of
article 26 (see question 4), but instead has obtained a favourable determination from
the US competent authority for the application of the safety-valve provision laid
down in article 26, paragraph 7, of the Convention (See point 3 of the instructions
on the back of the fourth copy)
Go to question 3.
-
b. o. A previous statement was issued for the applicant by the competent Dutch Inspector
stating that the conditions of article 26 and, if appropriate, the conditions of article
12, paragraph 8, or article 13, paragraph 6, of the Convention are satisfied.
Go to question 3.
-
c. o. The applicant has not obtained a favourable determination from the US competent authority
for the application of the safety-valve provision, nor was a previous statement issued
for the applicant by the competent Dutch Inspector. Go to question 4.
(please tick as appropriate)
3. Have there been any important changes in facts and circumstances since the date
on which the previous statement was issued by the competent Dutch Inspector, or, if
no such previous statement was issued, since the favourable determination has been
obtained from the US competent authority, which could affect the issuing of a (subsequent)
statement, or which could affect the test on which the issuing of a statement has
been, or will be, based? (Please tick as appropriate)
-
o No. In the situation where a previous statement was issued by the competent Dutch
Inspector, please tick questions 4 and/or, if appropriate, question 5 of this form
in the same manner as was done in the form requesting the issuing of the previous
statement
-
o Yes. Go to question 4 and, if appropriate, 5 (See however point 4 and 5 of the instructions
on the back of the fourth copy)
4. The applicant satisfies the conditions as laid down in article 26 of the Convention
in:
(Please tick as appropriate)
|
o
|
Paragraph 1, subparagraph c, i
|
(direct stock-exchange test)
|
See part
|
I.
|
|
o
|
Paragraph 1, subp. c, ii of iii
|
(indirect stock-exchange test)
|
See part
|
II.
|
|
o
|
Paragraph 1, subparagraph c, iv
|
(indirect stock-exchange test for conduit companies)
|
See part
|
III.
|
|
o
|
Paragraph 1, subparagraph d
|
(shareholder test)
|
See part
|
IV.
|
|
o
|
Paragraph 4,
|
(EC shareholder test)
|
See part
|
V.
|
|
o
|
Paragraph 1, subparagraph e
|
(exempt organisations)
|
See part
|
VI.
|
|
o
|
Paragraph 2
|
(activity test)
|
See part
|
VII.
|
|
o
|
Paragraph 3
|
(head-office test)
|
See part
|
VIII.
|
|
o
|
Paragraph 6
|
(test for shipping and air transport companies)
|
See part
|
IX.
|
5. The applicant satisfies the conditions of one of the tests mentioned under question
4, or has obtained a favourable determination from the US competent authority for
application of the safety-valve provision (question 2), and derives interest of royalty
income from the United States of America that is:
(please tick as appropriate)
-
a. o. not attributable to a permanent establishment of the applicant in a third state and
thus not subject to tax in the United States of America, or
-
b. o. attributable to a permanent establishment of the applicant in a third state and not
subject to tax in the United States of America, since the applicant, in the case of
interest income, satisfies the conditions of article 12, paragraph 8, and, in the
case of royalty income, satisfies the conditions of article 13, paragraph 6, of the
Convention, or
-
c. o. attributable to a permanent establishment of the applicant in a third state and subject
to tax in the United States of America at a rate of no more than 15 percent, since
the applicant, in the case of interest income, does not satisfy the conditions of
article 12, paragraph 8, respectively, in the case of royalty income, does not satisfy
the conditions of article 13, paragraph 6, of the Convention.
Place .......................................
Date ...............................................
Signature of the applicant
...............................................................
(do not write below this line)
Statement by the competent dutch inspector
[Regeling vervallen per 21-08-2010 met terugwerkende kracht tot en met 13-08-2010]
I state that, to the best of my knowledge, the above information, as well as the facts
and circumstances which have been presented tot support this statement are correct
and adequate. This statement is valid only for the whole of the calendar year 19 .
However, it will become invalid at the moment that during this calendar year a change
in facts or circumstances causes the applicant to be entitled to the treaty benefits
no longer.
Date: .................................................
Signature: ..........................................
(Stamp)
3rd copy for the Dutch tax authorities
[Regeling vervallen per 21-08-2010 met terugwerkende kracht tot en met 13-08-2010]
3rd copy for the dutch tax authorities
This form (hereafter referred to as form ‘IB 93 USA’) may be filled in by the beneficial
owner of items of income from US sources (in the following: ‘the applicant’) to demonstrate
to the withholding agent (unless that agent has actual knowledge or reason to know
otherwise) and to the US tax authorities that the conditions of article 26, and, if
appropriate, those of article 12, paragraph 8, or article 13, paragraph 6, of the
Convention of 18 December 1992 between the Netherlands and the United States of America
for the avoidance of double taxation are satisfied and that the applicant is entitled
to the benefits of the Convention.
Important!
Before filling in this form, please read the instructions on the back of the fourth
copy.
Note: this form is intended only for residents of the Netherlands other than
-
– individuals (article 26, paragraph 1, subparagraph a of the Convention)
-
– the State or a political subdivision thereof or a local authority thereof (article
26, paragraph 1, subparagraph b of the Convention).
NB: The flow chart in annex I to form ‘IB 93 USA’, parts I -X is simplified version
of the text of article 26. The flow chart in annex I to form ‘IB 93 USA’, part XI
is based on the text of article 12, paragraph 8, and article 13, paragraph 6, of the
Convention. Please consult the flow chart in annex I to form ‘IB 93 USA’ and the full
text of the Convention when filling in this form. Any further questions can be addressed
to the Inspector in whose jurisdiction the applicant is a resident. Data of the immediately
preceding taxable year may be used when filling in this form, unless the applicant
knows or has reason to know that changes will occur or have occurred in the facts
and circumstances during the taxable year under consideration, which changes might
affect the issuing of a statement for the taxable year under consideration.
1. Full name, address, telephone number and ‘Landelijk Vast nummer’ (fiscal number)
of applicant:
...............................................................
...............................................................
(in capital letters)
2.
-
a. o. The applicant does not meet one of the tests laid down in paragraphs 1 through 6 of
article 26 (see question 4), but instead has obtained a favourable determination from
the US competent authority for the application of the safety-valve provision laid
down in article 26, paragraph 7, of the Convention (See point 3 of the instructions
on the back of the fourth copy)
Go to question 3.
-
b. o. A previous statement was issued for the applicant by the competent Dutch Inspector
stating that the conditions of article 26 and, if appropriate, the conditions of article
12, paragraph 8, or article 13, paragraph 6, of the Convention are satisfied.
Go to question 3.
-
c. o. The applicant has not obtained a favourable determination from the US competent authority
for the application of the safety-valve provision, nor was a previous statement issued
for the applicant by the competent Dutch Inspector. Go to question 4.
(please tick as appropriate)
3. Have there been any important changes in facts and circumstances since the date
on which the previous statement was issued by the competent Dutch Inspector, or, if
no such previous statement was issued, since the favourable determination has been
obtained from the US competent authority, which could affect the issuing of a (subsequent)
statement, or which could affect the test on which the issuing of a statement has
been, or will be, based? (Please tick as appropriate)
-
o No. In the situation where a previous statement was issued by the competent Dutch
Inspector, please tick questions 4 and/or, if appropriate, question 5 of this form
in the same manner as was done in the form requesting the issuing of the previous
statement
-
o Yes. Go to question 4 and, if appropriate, 5 (See however point 4 and 5 of the instructions
on the back of the fourth copy)
4. The applicant satisfies the conditions as laid down in article 26 of the Convention
in:
(Please tick as appropriate)
|
o
|
Paragraph 1, subparagraph c, i
|
(direct stock-exchange test)
|
See part
|
I.
|
|
o
|
Paragraph 1, subp. c, ii or iii
|
(indirect stock-exchange test)
|
See part
|
II.
|
|
o
|
Paragraph 1, subparagraph c, iv
|
(indirect stock-exchange test for conduit companies)
|
See part
|
III.
|
|
o
|
Paragraph 1, subparagraph d
|
(shareholder test)
|
See part
|
IV.
|
|
o
|
Paragraph 4,
|
(EC shareholder test)
|
See part
|
V.
|
|
o
|
Paragraph 1, subparagraph e
|
(exempt organisations)
|
See part
|
VI.
|
|
o
|
Paragraph 2
|
(activity test)
|
See part
|
VII.
|
|
o
|
Paragraph 3
|
(head-office test)
|
See part
|
VIII.
|
|
o
|
Paragraph 6
|
(test for shipping and air transport companies)
|
See part
|
IX.
|
5. The applicant satisfies the conditions of one of the tests mentioned under question
4, or has obtained a favourable determination from the US competent authority for
application of the safety-valve provision (question 2), and derives interest of royalty
income from the United States of America that is:
(please tick as appropriate)
-
a. o. not attributable to a permanent establishment of the applicant in a third state and
thus not subject to tax in the United States of America, or
-
b. o. attributable to a permanent establishment of the applicant in a third state and not
subject to tax in the United States of America, since the applicant, in the case of
interest income, satisfies the conditions of article 12, paragraph 8, and, in the
case of royalty income, satisfies the conditions of article 13, paragraph 6, of the
Convention, or
-
c. o. attributable to a permanent establishment of the applicant in a third state and subject
to tax in the United States of America at a rate of no more than 15 percent, since
the applicant, in the case of interest income, does not satisfy the conditions of
article 12, paragraph 8, respectively, in the case of royalty income, does not satisfy
the conditions of article 13, paragraph 6, of the Convention.
Place .......................................
Date ......................................................
Signature of the applicant
...............................................................
(do not write below this line)
Statement by the competent dutch inspector
[Regeling vervallen per 21-08-2010 met terugwerkende kracht tot en met 13-08-2010]
I state that, to the best of my knowledge, the above information, as well as the facts
and circumstances which have been presented tot support this statement are correct
and adequate. This statement is valid only for the whole of the calendar year 19 .
However, it will become invalid at the moment that during this calendar year a change
in facts or circumstances causes the applicant to be entitled to the treaty benefits
no longer.
Date: .................................................
Signature: ..........................................
(Stamp)
4th copy for the applicant
[Regeling vervallen per 21-08-2010 met terugwerkende kracht tot en met 13-08-2010]
4th copy for the applicant
This form (hereafter referred to as form ‘IB 93 USA’) may be filled in by the beneficial
owner of items of income from US sources (in the following: ‘the applicant’) to demonstrate
to the withholding agent (unless that agent has actual knowledge or reason to know
otherwise) and to the US tax authorities that the conditions of article 26, and, if
appropriate, those of article 12, paragraph 8, or article 13, paragraph 6, of the
Convention of 18 December 1992 between the Netherlands and the United States of America
for the avoidance of double taxation are satisfied and that the applicant is entitled
to the benefits of the Convention.
Important!
Before filling in this form, please read the instructions on the back of the fourth
copy.
Note: this form is intended only for residents of the Netherlands other than
-
– individuals (article 26, paragraph 1, subparagraph a of the Convention)
-
– the State or a political subdivision thereof or a local authority thereof (article
26, paragraph 1, subparagraph b of the Convention).
NB: The flow chart in annex I to form ‘IB 93 USA’, parts I -X is simplified version
of the text of article 26. The flow chart in annex I to form ‘IB 93 USA’, part XI
is based on the text of article 12, paragraph 8, and article 13, paragraph 6, of the
Convention. Please consult the flow chart in annex I to form ‘IB 93 USA’ and the full
text of the Convention when filling in this form. Any further questions can be addressed
to the Inspector in whose jurisdiction the applicant is a resident. Data of the immediately
preceding taxable year may be used when filling in this form, unless the applicant
knows or has reason to know that changes will occur or have occurred in the facts
and circumstances during the taxable year under consideration, which changes might
affect the issuing of a statement for the taxable year under consideration.
1. Full name, address, telephone number and ‘Landelijk Vast nummer’ (fiscal number)
of applicant:
...............................................................
...............................................................
(in capital letters)
2.
-
a. o. The applicant does not meet one of the tests laid down in paragraphs 1 through 6 of
article 26 (see question 4), but instead has obtained a favourable determination from
the US competent authority for the application of the safety-valve provision laid
down in article 26, paragraph 7, of the Convention (See point 3 of the instructions
on the back of the fourth copy)
Go to question 3.
-
b. o. A previous statement was issued for the applicant by the competent Dutch Inspector
stating that the conditions of article 26 and, if appropriate, the conditions of article
12, paragraph 8, or article 13, paragraph 6, of the Convention are satisfied.
Go to question 3.
-
c. o. The applicant has not obtained a favourable determination from the US competent authority
for the application of the safety-valve provision, nor was a previous statement issued
for the applicant by the competent Dutch Inspector. Go to question 4.
(please tick as appropriate)
3. Have there been any important changes in facts and circumstances since the date
on which the previous statement was issued by the competent Dutch Inspector, or, if
no such previous statement was issued, since the favourable determination has been
obtained from the US competent authority, which could affect the issuing of a (subsequent)
statement, or which could affect the test on which the issuing of a statement has
been, or will be, based? (Please tick as appropriate)
-
o No. In the situation where a previous statement was issued by the competent Dutch
Inspector, please tick questions 4 and/or, if appropriate, question 5 of this form
in the same manner as was done in the form requesting the issuing of the previous
statement
-
o Yes. Go to question 4 and, if appropriate, 5 (See however point 4 and 5 of the instructions
on the back of the fourth copy)
4. The applicant satisfies the conditions as laid down in article 26 of the Convention
in:
(Please tick as appropriate)
|
o
|
Paragraph 1, subparagraph c, i
|
(direct stock-exchange test)
|
See part
|
I.
|
|
o
|
Paragraph 1, subp. c, ii or iii
|
(indirect stock-exchange test)
|
See part
|
II.
|
|
o
|
Paragraph 1, subparagraph c, iv
|
(indirect stock-exchange test for conduit companies)
|
See part
|
III.
|
|
o
|
Paragraph 1, subparagraph d
|
(shareholder test)
|
See part
|
IV.
|
|
o
|
Paragraph 4,
|
(EC shareholder test)
|
See part
|
V.
|
|
o
|
Paragraph 1, subparagraph e
|
(exempt organisations)
|
See part
|
VI.
|
|
o
|
Paragraph 2
|
(activity test)
|
See part
|
VII.
|
|
o
|
Paragraph 3
|
(head-office test)
|
See part
|
VIII.
|
|
o
|
Paragraph 6
|
(test for shipping and air transport companies)
|
See part
|
IX.
|
5. The applicant satisfies the conditions of one of the tests mentioned under question
4, or has obtained a favourable determination from the US competent authority for
application of the safety-valve provision (question 2), and derives interest of royalty
income from the United States of America that is:
(please tick as appropriate)
-
a. o. not attributable to a permanent establishment of the applicant in a third state and
thus not subject to tax in the United States of America, or
-
b. o. attributable to a permanent establishment of the applicant in a third state and not
subject to tax in the United States of America, since the applicant, in the case of
interest income, satisfies the conditions of article 12, paragraph 8, and, in the
case of royalty income, satisfies the conditions of article 13, paragraph 6, of the
Convention, or
-
c. o. attributable to a permanent establishment of the applicant in a third state and subject
to tax in the United States of America at a rate of no more than 15 percent, since
the applicant, in the case of interest income, does not satisfy the conditions of
article 12, paragraph 8, respectively, in the case of royalty income, does not satisfy
the conditions of article 13, paragraph 6, of the Convention.
Place .......................................
Date ......................................................
Signature of the applicant
...............................................................
(do not write below this line)
Statement by the competent dutch inspector
[Regeling vervallen per 21-08-2010 met terugwerkende kracht tot en met 13-08-2010]
I state that, to the best of my knowledge, the above information, as well as the facts
and circumstances which have been presented tot support this statement are correct
and adequate. This statement is valid only for the whole of the calendar year 19 .
However, it will become invalid at the moment that during this calendar year a change
in facts or circumstances causes the applicant to be entitled to the treaty benefits
no longer.
Date: .................................................
Signature: ..........................................
(Stamp)
Instructions for the filling in and further processing of form ‘IB 93 USA’
1. A separate form ‘IB 93 USA’ must be used for each person claiming application of
the Convention and for each withholding agent. The first copy of the form ‘IB 93 USA’
(the copy for the American tax authorities) must always be accompanied by the list
of the estimated annual amounts of United States source passive income for which treaty
benefits are claimed, which list is attached to the fist copy (to be filled in by
the applicant) and by a list of the applicable statements and of the actual documentation
reviewed by the Inspector (to be filled out by the competent Dutch Inspector).
2. Start filling in form ‘IB 93 USA’ at question 1.
3. If the US competent authority has previously agreed to grant treaty benefits on
the basis of article 26, paragraph 7 (the safety-valve provision), written confirmation
of this decision by the US competent authority has to be submitted if this has not
already been done.
4. If the applicant does not meet one of the tests in question 4, see part X of the
flow chart in annex I to form ‘IB 93 USA’ on how to apply for a determination by the
US competent authority for the application of article 26, paragraph 7.
5. If the applicant does not meet one of the tests in question 4, but instead has
obtained a favourable determination from the US competent authority for the application
of the safety-valve provision and if the changes in facts and circumstances referred
to in question 3 are such that they could affect the validity of this favourable determination,
then the previously obtained favourable determination is no longer valid.
For an advance approval of the safety-valve provision based on the changed facts and
circumstances you must submit a request for that purpose to the US competent authority.
6. Before filling in question 4 of this form, determine which test can be used as
a basis for a request for the application of the Convention.
The flow chart in annex I to form ‘IB 93 USA’, parts I–IX can be used as a guide.
These parts do not have to be filled in; simply follow the instructions after each
question. Before filling in question 5 of this form, proceed in the same manner. In
that case the flow chart in annex I to form ‘IB 93 USA’, part XI can be used as a
guide.
7. All four copies of the completed and signed form ‘IB 93 USA’ (including the completed
list of estimated annual amounts of passive United States source income for which
treaty benefits are claimed, which list is attached to the first copy of this form)
should be sent to the competent Dutch Inspector. In cases where questions 2, 4 and
5 of this form have been filled in for the first time, the applicant should enclosed
with his request for the issuing of a statement documentary evidence in support of
his claim to treaty benefits (see parts I through XI of the flow chart in annex I
to form ‘IB 93 USA’). However, if question 3 of this form has been answered in the
affirmative, the applicant should again enclose the documentary evidence. Furthermore,
documentary evidence must be enclosed once every three years, starting with the first
year in which a request for the issuing of a statement has been submitted, or, if
appropriate, starting with the year in which question 3 of this form has been answered
in the affirmative.
In cases where documentary evidence need not be enclosed, the applicant should however
have the documentary evidence readily available and must submit it to the Inspector
upon request. The documentary evidence may be sent by the Netherlands competent authority
(Belastingdienst/FIOD, Inlichtingendienst), Wederzijdse Bijstand, Postbus 1603, 2003
BR Haarlem) to the US competent authority on the latter’s request.
8. Once the information provided has been verified, the Inspector sends the first
copy of the form ‘IB 93 USA’ signed by him, together with the completed list of estimated
annual amounts of passive United States source income for which treaty benefits are
claimed (this list is attached to the first copy of the form and will not be verified
by the Inspector) and by the listing of the applicable statements and of the actual
documentation reviewed by the Inspector to the Belastingdienst/FIOD, Inlichtingendienst/Wederzijdse
Bijstand, Postbus 1603, 2003 BR Haarlem, who will pass this documentation on to the
American tax authorities. The Inspector sends the second and fourth copy of the form
‘IB 93 USA’ back to the applicant and he retains the third copy for his own files.
The applicant passes on the second copy to the withholding agent. This statement can
be used to demonstrate to the United States withholding agent (unless that agent has
actual knowledge or reason to know otherwise) that, the conditions of article 26 and,
if appropriate, those of paragraph 8 of article 12 and those of paragraph 6 of article
13 of the Convention have been satisfied.
In the case of dividend-income, a reduction of or an exemption of American withholding
tax can be obtained by claiming treaty benefits with the withholding agent.
In the case of other income, a reduction of or an exemption of American withholding
tax can be obtained only if the American 1001 form, or other appropriate form, is
submitted to the withholding agent.
9. Blank copies of form ‘IB 93 USA’ and of the annex thereto (the flow chart) can
be obtained free of charge from the Belastingdienst/Logistiek Centrum, Postbus 9050,
7300 GM Apeldoorn, The Netherlands.
Bijlage 2
[Regeling vervallen per 21-08-2010 met terugwerkende kracht tot en met 13-08-2010]
Annex I. To form ‘IB 93 USA’ (flow chart)
[Regeling vervallen per 21-08-2010 met terugwerkende kracht tot en met 13-08-2010]
This flow chart may be used when filling in form ‘IB 93 USA’. The questions in parts
I–X of this flow chart present the text of article 26 of the convention in simplified
form and those in part XI present the text of article 12, paragraph 8, and article
13, paragraph 6, of the Convention in a simplified form. If the questions are unclear,
please consult the text of the Convention, the Memorandum of Understanding and, if
appropriate, the exchange of letters signed by the Governments of the Contracting
States on 13 October 1993 (in the following: the exchange of letters). Wherever possible,
the flow chart includes references to the relevant provisions of article 26 and to
article 12, paragraph 8, and article 13, paragraph 6, of the Convention, and to the
relevant provisions of the Memorandum of Understanding and the exchange of letters.
Any further questions can be addressed to the Inspector in whose jurisdiction you
are resident.
Important
Data of the immediately preceding taxable year may be used, unless the applicant knows
or has reason to know that changes will occur or have occurred in the facts and circumstances
during the taxable year under consideration, which changes might affect the issuing
of a statement for the taxable year under consideration.
The following terms are relevant when going through parts I–XI of this flow chart:
Share certificates
Share certificates will be considered to have the same rights as the rights attached
to the shares which they replace, including the voting rights thereof. (see article
26, paragraph 8, subparagraph b and part I of the exchange of letters).
Deductible payments
The term ‘deductible payments’ includes all payments which may be deducted when determining
the taxable income, with the exception of the direct costs of goods sold (which term
includes direct costs of goods purchased and direct payroll expenses) and with the
exception of other payments for the purchase, use of or the right to use tangible
property in the ordinary course of business or remuneration for services performed
in the state of residence of the company making the payments provided they are at
arm’s length (see article 26, paragraph 5, subparagraph c).
Gross income
The term ‘gross income’ means gross receipts less direct costs of goods sold, which
latter term includes direct costs of goods purchased and direct payroll expenses.
Qualified persons
The term ‘qualified persons’ refers to individuals resident in The Netherlands or
in the United States of America, to the United States of America or The Netherlands
or a political subdivision or local authority thereof, and to other persons resident
in The Netherlands or the United States of America which may claim benefits under
the Convention on the basis of parts I, II, III, IV or VI of this flow chart as well
as citizens of the United States of America (see article 26, paragraph 8, subparagraph
g).
Member State of the European Community
The term ‘member state of the European Community’ refers to The Netherlands and any
other EC member state with which The Netherlands and United States of America have
concluded a comprehensive income tax Convention. In practice this means that the term
includes all member states of the European Community except Portugal (see article
26, paragraph 8, subparagraph h).
Resident of a member state of the European Community
The term ‘resident of a member state of the European Community’ refers in general
to a person which
-
– would be considered as a qualified person for the application of the Convention within
the meaning of the Dutch-American Convention if it, had its state of residence been
The Netherlands, would be considered to be a resident of The Netherlands under the
principles of article 4, and
-
– is otherwise entitled to benefits under the convention especially with respect to
residency and beneficial ownership between the state in which it is actually resident
and the United States of America. (See article 26, paragraph 8, subparagraph i, and
part VII of the exchange of letters).
I. The direct stock-exchange test
[Regeling vervallen per 21-08-2010 met terugwerkende kracht tot en met 13-08-2010]
(for companies listed on the stock exchange)
Answer the following questions to determine whether the conditions of article 26,
paragraph 1, subparagraph c, i, of the Convention are satisfied.
|
1.
|
Is the principal class of shares listed on a recognised stock exchange in The Netherlands
or the United States of America? (See paragraph 8, subparagraphs a, b, d and e.)
(The principal class of shares is generally the ordinary shares of the company, provided
that this class of shares represents the majority of the voting power and value of
the company)
|
→
|
If not, go to part II.
|
| |
I
V
Yes
I
V
|
|
|
|
2.
|
Is the principal class of shares traded regularly and substantially on one or more
recognised stock exchanges? (See paragraph 8, subparagraph f.)
(In the preceding taxable year at least 6% of the average number of outstanding shares
must have been traded and each month there must have been trade in more than de minimus
quantities. In addition to trade on the Dutch and American stock exchanges, trade
on the Frankfurt, London, Paris, Brussels, Hamburg, Madrid, Milan, Sydney, Tokyo and
Toronto stock exchanges may also be taken into account.)
|
→
|
If not, go to part II.
|
| |
I
V
Yes
I
V
|
|
|
|
3.
|
The company satisfies the conditions of paragraph 1, subparagraph c, i, of article
26 of the Convention.
|
| |
You may indicate this in question 4 of form ‘IB 93 USA’ and sign the form.
|
| |
Please enclose documentary evidence in support of your entitlement to treaty benefits,
such as for example:
|
| |
– with respect to the principal class of shares, including any disproportionate class
of shares, documents showing:
|
| |
* a description of the class of shares and the number of outstanding shares of this
class;
|
| |
* letters from the recognised stock exchanges confirming the company’s temporary or
definite listing;
|
| |
* proof that the aggregate yearly trading of the shares, as published in the Official
List or its equivalent in the United States of America, or its equivalent in any other
relevant country where the stock is traded, exceeded 6 percent and that there has
been a monthly trade in the principal class of shares in more than de minimus quantities;
|
| |
– if the company’s stock is traded only on the parallel market of the Amsterdam stock
exchange or NASDAQ, a statement that the company has no knowledge or reason to know
that its stock is closely held, within the meaning of subparagraph e of paragraph
8 of article 26.
|
| |
– other relevant documents.
|
II. The indirect stock-exchange test
[Regeling vervallen per 21-08-2010 met terugwerkende kracht tot en met 13-08-2010]
(for subsidiaries of companies listed on the stock exchange)
Answer the following questions to determine whether the conditions of article 26,
paragraph 1, subparagraph c, ii or iii, of the Convention are satisfied.
|
1.
|
Is more than 50% of the aggregate vote and value of all shares owned directly or indirectly
by five or fewer companies, resident of The Netherlands or the United States of America,
which meet the direct stock-exchange test in part I?
|
→
|
If yes, go to question 4.
|
| |
I
V
No
I
V
|
|
|
|
2.
|
Is at least 30% of the aggregate vote and value of all shares owned directly of indirectly
by five or fewer companies, resident of The Netherlands which meet the direct stock-exchange
test in part I?
|
→
|
If not, go to part IV.
|
| |
I
V
Yes
I
V
|
|
|
|
3.
|
Is at least 70% of the aggregate vote and value of all shares owned directly or indirectly
by five or fewer companies which are residents of the United States of America or
of one of the EC member states, including The Netherlands, the principal class of
shares of which is traded regularly and substantially on one or more recognised stock
exchanges? (See part I)
|
→
|
If not, go to part IV.
|
| |
I
V
Yes
I
V
|
|
|
|
4.
|
If the shares referred to in questions 1, 2 and 3 are indirectly owned by a company
listed on the stock exchange, are then the other intermediary companies in the chain
of ownership residents of the United States of America or of one of the EC member
states, including The Netherlands?
(See paragraph 8, subparagraph k.)
|
→
|
If not, go to part IV.
|
| |
I
V
Yes
I
V
|
|
|
|
5.
|
Are deductible payments made in an amount of less than 90% of interest, royalties
and similar payments received (See paragraph 8, subparagraph m.)
|
→
|
If not, go to part III.
|
| |
I
V
Yes
I
V
|
|
|
|
6.
|
The company satisfies the conditions of paragraph 1, subparagraph c, ii or iii, of
article 26 of the Convention. You may indicate this in question 4 of form ‘IB 93 USA’
and sign the form.
|
| |
Please enclose documentary evidence in support of your entitlement to treaty benefits,
such as for example:
|
| |
– with respect to each company relied on in meeting either the 50% threshold or the
30% and 70% thresholds, documents showing:
|
| |
* the company’s name, country of residence, and percentage of vote and value that
it owns directly and/or indirectly in the applicant, including the name and country
of residence of any intermediary company between that company and the applicant;
|
| |
* a description of the principal class of shares of the company (including any disproportionate
class of shares) and the number of outstanding shares of the class(es);
|
| |
* letters from the recognised stock exchanges confirming the company’s temporary of
definite listing;
|
| |
* proof that the aggregate yearly trading of the principal class of shares, as published
in the Official List or its equivalent in the United States of America, or its equivalent
in any other relevant country where the stock is traded, exceeded 6 percent and that
there has been a monthly trade in the principal class of shares in more than de minimus
quantities.
|
| |
– if the company’s stock is traded only on the parallel market of the Amsterdam stock
exchange or NASDAQ, a statement that the company has no knowledge or reason to know
that its stock is closely held, within the meaning of subparagraph e of paragraph
8 of article 26.
|
| |
– a copy of the profit and loss account showing of the applicant showing the amount
of interest and royalty payments made and received, including a calculation that shows
that such payments are made in an amount of less than 90 percent of similar payments
received.
|
| |
– other relevant documents.
|
III. Indirect stock-exchange test for conduit companies
[Regeling vervallen per 21-08-2010 met terugwerkende kracht tot en met 13-08-2010]
(for subsidiaries of companies listed on the stock exchange which make deductible
payments in an amount equal to or more than 90% of interest, royalties and similar
payments received)
Answer the following questions to determine whether the conditions of article 26,
paragraph 1, subparagraph c, iv, of the Convention are satisfied.
|
1.
|
Are all the associated enterprises receiving deductible payments from the applicant
liable to a rate of tax of 50 per cent or more of the general rate of corporation
tax applicable in The Netherlands?
(See paragraph 5, subparagraphs a, i, and d.)
|
→
|
If yes, go to point 5.
|
| |
I
V
No
I
V
|
|
|
|
2.
|
Is less than 50% of the gross income used directly or indirectly to make deductible
payments to associated enterprises which do not qualify for application of the Convention?
(See paragraph 5, subparagraphs a, i, and d.)
(for the purposes of this test only payments made to associated enterprises which
are liable to a tax rate of less than 50% of the general rate of corporation tax applicable
in The Netherlands are considered to be deductible payments)
|
→
|
If yes, go to point 5.
|
| |
I
V
No
I
V
|
|
|
|
3.
|
Is less than 70% of the gross income used directly or indirectly to make deductible
payments to associated enterprises which do not qualify for application of the Convention?
(See paragraph 5, subparagraph a, ii, and d.)
(for the purposes of this test only payments made to associated enterprises which
are liable to a tax rate of less than 50% of the general rate of corporation tax applicable
in The Netherlands are considered to be deductible payments)
|
→
|
If not, go to part IV.
|
| |
I
V
Yes
I
V
|
|
|
|
4.
|
Is less than 30% of the gross income used directly or indirectly to make deductible
payments to associated enterprises which are not qualified persons nor residents of
EC member states?
(See paragraph 5, subparagraph a, ii, and d.)
(for the purposes of this test only payments made to associated enterprises which
are liable to a tax rate of less than 50% of the general rate of corporation tax applicable
in The Netherlands are considered to be deductible payments)
|
→
|
If not, go to part IV.
|
| |
I
V
Yes
I
V
|
|
|
|
5.
|
The company satisfies the conditions of paragraph 1, subparagraph c, iv, of article
26 of the Convention.
|
| |
You may indicate this in question 4 of form ‘IB 93 USA’ and sign the form.
|
| |
Please enclose documentary evidence in support of your entitlement to treaty benefits,
such as for example:
|
| |
– documents referred to in the indirect stock-exchange test statement.
|
| |
– the tax returns showing that the conditions of either the 50 percent income test
or the 70/30 percent gross income tests have been satisfied, including the name and
country of residence of each associated enterprise relied upon to meet these tests.
|
| |
– information on the tax rate to which the recipient was liable with respect to these
deductible payments.
|
| |
– other relevant documents.
|
IV. The shareholder test
[Regeling vervallen per 21-08-2010 met terugwerkende kracht tot en met 13-08-2010]
(for persons with a majority of Dutch or American shareholders)
Answer the following questions to determine whether the conditions of article 26,
paragraph 1, subparagraph d of the Convention are satisfied.
|
1.
|
Is more than 50% of the beneficial interest directly or indirectly owned by qualified
persons?
|
→
|
If not, go to part V.
|
| |
I
V
Yes
I
V
|
|
|
|
2.
|
Is less than 50% of the gross income used directly of indirectly to make deductible
payments to persons which are not qualified persons? (See paragraph 5, subparagraph
a, i.)
|
→
|
If yes, go to point 5.
|
| |
I
V
No
I
V
|
|
|
|
3.
|
Is less than 70% of the gross income used directly or indirectly to make deductible
payments to persons which are not qualified persons?
(See paragraph 5, subparagraph a, ii.)
|
→
|
If not, go to part V.
|
| |
I
V
Yes
I
V
|
|
|
|
4.
|
Is less than 30% of the gross income used directly or indirectly to make deductible
payments to persons other than qualified persons or residents of EC member states?
|
→
|
If not, go to part V.
|
| |
I
V
Yes
I
V
|
|
|
|
5.
|
The person satisfies the conditions of paragraph 1, subparagraph d of article 26 of
the Convention. You may indicate this in question 4 of form ‘IB 93 USA’ and sign the
form.
|
| |
For investment organisations within the meaning of article 28 of the 1969 Corporation
Tax Act please see the special provision in part XI of the Memorandum of Understanding.
|
| |
Please enclose documentary evidence in support of your entitlement to treaty benefits,
such as for example:
|
| |
– for investment organisations within the meaning of article 28 of the 1969 Corporation
Tax Act, the information described in paragraph XI of the Memorandum of Understanding.
|
| |
– for all other companies, with respect to each qualified person relied on in meeting
the 50 percent threshold, documents showing: the person’s name, country of residence,
and percentage of vote and value of shares (including any disproportionate class of
stock) that it owns directly and/or indirectly in the applicant.
|
| |
– with respect to each qualified person (other than an individual, state, political
subdivision, local authority, or United States citizen) documents similar to those
required to meet the conditions under parts I, II and III of this flow chart to substantiate
such person’s status as a qualified person.
|
| |
– with respect to an applicant company whose stock is owned by a trust or with respect
to an applicant that is a trust (other than an exempt pension trust or an exempt organisation
organised in the form of a trust), a copy of the trust agreement and proof that the
trust and/or beneficiaries are subject to tax on the income for which treaty benefits
are claimed.
|
| |
– tax returns showing the applicant’s gross income for the preceding four years.
|
| |
– a copy of the profit and loss account showing the deductible payments made and received.
|
| |
– a calculation showing that the conditions of either the 50 percent income test or
the 70/30 percent gross income tests have been satisfied, including the name and country
of residence of each person relied upon to meet these tests.
|
| |
– other relevant documents.
|
V. The EC shareholder test
[Regeling vervallen per 21-08-2010 met terugwerkende kracht tot en met 13-08-2010]
(for companies with a majority of American, Dutch or other EC shareholders)
Answer the following questions to determine whether the conditions of article 26,
paragraph 4 of the Convention are satisfied.
|
1.
|
Is more than 30% of the aggregate vote and value of all shares directly or indirectly
owned by qualified persons, resident of The Netherlands?
|
→
|
If not, go to part VI.
|
| |
I
V
Yes
I
V
|
|
|
|
2.
|
Is more than 70% of the aggregate vote and value of alle shares directly or indirectly
owned by qualified persons and persons which are residents of an EC member state (including
The Netherlands)?
(A resident of an EC member state may be taken into account only if the income paid
to The Netherlands from the United States of America is not taxed at a more favourable
rate than if this income was paid to the shareholder’s member state; see paragraph
4, subparagraph b.)
|
→
|
If not, go to part VI.
|
| |
I
V
Yes
I
V
|
|
|
|
3.
|
Is less than 50% of the gross income used directly or indirectly to make deductible
payments to persons which are not qualified persons? (See paragraph 5, subparagraph
a, i.)
|
→
|
If yes, go to point 6.
|
| |
I
No
I
V
V
|
|
|
|
4.
|
Is less than 70% of the gross income used directly or indirectly to make deductible
payments to persons which are not qualified persons? (See paragraph 5, subparagraph
a, ii.)
|
→
|
If not, go to part VI.
|
| |
I
V
Yes
I
V
|
|
|
|
5.
|
Is less than 30% of the gross income used directly or indirectly to make deductible
payments to persons other than qualified persons or residents of EC member states?
(See paragraph 5, subparagraph a, ii.)
|
→
|
If not, go to part VI.
|
| |
I
V
Yes
I
V
|
|
|
|
6.
|
The company satisfies the conditions of paragraph 4 of article 26 of the Convention,
which entitles it to the benefits of article 10 (Dividends), 11 (Branch Tax), 12 (Interest)
and 13 (Royalties) of the Convention. You may indicate this in question 4 of form
‘IB 93 USA’ and sign the form.
|
| |
Please enclose documentary evidence in support of your entitlement to treaty benefits,
such as for example:
|
| |
– documents referred to in the shareholder test statement, substituting with respect
to the ownership requirements 30 percent and 70 percent for 50 percent. Note: if there
is a disproportionate class of shares of the company seeking treaty benefits, the
same information with respect to that class of shares.
|
| |
– information on the type of income that is expected to be received from the United
States.
|
| |
– other relevant documents.
|
| |
|
VI. The test for exempt organisations
[Regeling vervallen per 21-08-2010 met terugwerkende kracht tot en met 13-08-2010]
(for not-for-profit organisations exempt from tax in the Netherlands)
Answer the following questions to determine whether the conditions of article 26,
paragraph 1, subparagraph e of the Convention are satisfied.
|
1.
|
Is the organisation in question a not-for-profit organisation which is exempt from
income tax in the Netherlands?
(This may include pension funds, private foundations, trade unions and trade associations;
see paragraph 8, subparagraph j.)
|
→
|
If not, go to VII.
|
| |
I
V
Yes
I
V
|
|
|
|
2.
|
Are more than half of the beneficiaries, members or participants in the organisation
qualified persons
or
in the case of an organisation the purpose of which is to provide retirement, disability,
or other employment benefits, are the funds provided by an organisation which is itself
eligible for application of the Convention?
|
→
|
If not, go to part X.
|
| |
I
V
Yes
I
V
|
|
|
|
3.
|
The company satisfies the conditions of paragraph 1, subparagraph e of article 26
of the Convention. You may indicate this in question 4 of form ‘IB 93 USA’ and sign
the form.
|
| |
Please enclose documentary evidence in support of your entitlement to treaty benefits,
such as for example:
|
| |
– documents proving that more than half of its beneficiaries, members, or participants
are qualified persons.
|
| |
– documents proving that the exempt organisation is a pension fund, a pension trust,
or a similar entity, whose sponsoring organisation is entitled to benefits under the
Convention.
|
| |
– other relevant documents.
|
VII. The activity test
[Regeling vervallen per 21-08-2010 met terugwerkende kracht tot en met 13-08-2010]
(for persons operating a business in the Netherlands and EC member states directly
or via related companies)
Answer the following questions to determine whether the conditions of article 26,
paragraph 2 of the Convention are satisfied.
|
1.
|
Is the person in question itself or together with associated companies described in
paragraph 2, subparagraph e, iii through vii, engaged in the active conduct of a trade
or business in The Netherlands? (See paragraph 2, subparagraphs a and e.)
|
→
|
If not, go to part VIII.
|
| |
I
V
Yes
I
V
|
|
|
|
2.
|
Is the income derived by this person from the United States of America derived in
connection with the business activities carried on in The Netherlands?
(Income is derived in connection with, if the activity in the United States of America
which generates the income forms a part of or is complementary to the activities in
The Netherlands; see paragraph 2, subparagraph a, i, and b.)
|
→
|
If not, go to question 9.
|
| |
I
V
Yes
I
V
|
|
|
|
3.
|
Is the income derived from the United States of America derived from a person in which
either the applicant itself, or an associated person described in paragraph 2, subparagraph
e, iii through vii, owns shares, other than shares that generate incidental income,
or is the income derived through a United States permanent establishment of the applicant?
|
→
|
If not, go to point 10.
|
| |
I
V
Yes
I
V
|
|
|
|
4.
|
In the preceding taxable year was the value of the Dutch business assets of this person
or of associated persons, described in paragraph 2, subparagraph e, iii through vii,
operating in The Netherlands, either together or separately, more than 7.5% of the
value of the assets with which the income is generated in the United States of America?
(See paragraph 2, subparagraphs c, i, e, f and g, and the Memorandum of Understanding
XV.)
(The value of the assets of associated persons and of the assests used in the United
States of America are taken into account pro rata to the interest held in the person
in question. If the 7.5% ratio was not met in the preceding tax year, the average
of the three preceding years may be used instead.
This also applies to questions 5 and 6.)
|
→
|
If not, go to question 8.
|
| |
I
V
Yes
I
V
|
|
|
|
5.
|
In the preceding taxable year was the gross income of this person or of associated
persons, as meant in paragraph 2, subparagraph e, iii through vii, operating in The
Netherlands which was obtained from the business activities carried on in The Netherlands,
either together or separately, more than 7.5% of the gross income obtained from the
business activities carried on in the United States of America? (See paragraph 2,
subparagraphs c, ii, e, f and g.)
(The gross income of associated persons and the gross income in the United States
of America is taken into account pro rata to the interest held in the person in question.)
|
→
|
If not, go to question 8.
|
| |
I
V
Yes
I
V
|
|
|
|
6.
|
In the preceding taxable year were the payroll expenses of the business activities
of this person or of associated persons, described in paragraph 2, subparagraph e,
iii through vii, for services performed in The Netherlands, either together or separately,
more than 7.5% of the payroll expenses for services performed in the United States
of America? (See paragraph 2, subparagraph c, iii, e, f and g.)
(The payroll expenses of associated persons and the payroll expenses for services
performed in the United States of America are taken into account pro rata to the interest
held in the person in question.)
|
→
|
If not, go to question 8.
|
| |
I
V
Yes
I
V
|
|
|
|
7.
|
Is the average of the ratios calculated for questions 4, 5 and 6 more than 10%? (See
paragraph 2, subparagraph c.)
|
→
|
If yes, go to point 10.
|
| |
I
V
No
I
V
|
|
|
|
8.
|
Does the person or do the associated persons, as meant in paragraph 2, subparagraph
e, iii through vii, also carry on activities in other EC member states which are a
component part of or are directly related to the business activities carried on in
The Netherlands
and
are the ratios referred to in questions 4, 5 and 6 more than 50% and is the ratio
referred to in question 7 more than 60% if the assets, the gross income and the
payroll expenses related to the activities carried on in other EC member states are
also taken into account? (See paragraph 2, subparagraph c)
and
are the ratios referred to in questions 4, 5 and 6 more than 15% if the assets, the
gross income and the payroll expenses related to the business activities carried on
in The Netherlands are compared to the assets, the gross income and the payroll expenses
related to the activities carried on in the other EC member states? (See paragraph
2, subparagraph h).
|
→
|
If yes, go to point 10.
|
| |
I
V
No
I
V
|
|
|
|
9.
|
Is the income derived from the United States of America incidental to the business
activities carried on in The Netherlands? (See paragraph 2, subparagraphs a, ii, and
d.)
|
→
|
If not, go to part VIII.
|
| |
I
V
Yes
I
V
|
|
|
|
10.
|
The person satisfies the conditions of paragraph 2 of article 26 of the Convention.
You may indicate this in question 4 of form ‘IB 93 USA’ and sign the form.
|
| |
Please enclose documentary evidence in support of your entitlement to treaty benefits,
such as for example:
|
| |
– a description of the connection between the income derived from the United States
of America and the business activities carried on in The Netherlands.
|
| |
– a copy of the profit and loss account containing the information necessary to demonstrate
satisfaction of the substantiality tests and supporting calculations.
|
| |
– a chart or diagram showing the Dutch, EC and United States operations of the applicant,
including interests in any joint venture and/or partnership and any branches; the
type of income from sources within the United States derived by each of these operations
and a description of the line of business of each of these operations.
|
| |
– if the applicant elects to attribute to it the activities of another company or
group of companies resident in The Netherlands or an EC member state, documents providing:
|
| |
* the name and country of residence of each company; and
|
| |
* the basis under subparagraph e of paragraph 2 of article 26 on which attribution
is permitted and proof that the various requirements for attribution under subparagraphs
e and h of paragraph 2 have been met.
|
| |
– other relevant documents.
|
VIII. The headquarter company test
[Regeling vervallen per 21-08-2010 met terugwerkende kracht tot en met 13-08-2010]
(for headquarter companies of multinational groups of companies)
Answer the following questions to determine whether the conditions of article 26,
paragraph 3 of the Convention are satisfied.
|
1.
|
Does the headquarter company, carry out a substantial part of the supervision and
administration of a multinational group of companies and are these activities carried
out in The Netherlands?
(See paragraph 3, subparagraph a and the Memorandum of Understanding XVIII.)
(A significant number of the following functions must be carried out:
corporate financing – the activities of the headquarter company may not consist principally
of these activities – pricing, marketing, internal auditing, internal communication
and management.)
|
→
|
If not, go to part IX.
|
| |
I
V
Yes
I
V
|
|
|
|
2.
|
Does the group consist of corporations which are residents of and are actively engaged
in business activities carried on in at least five countries of five groups of countries?
(See paragraph 3, subparagraph b.)
|
→
|
If not, go to part IX.
|
| |
I
V
Yes
I
V
|
|
|
|
3.
|
Is at least 10% of the group’s gross income derived from each of the five countries
or five groups of countries?
(If this requirement is not met, the average gross income for the preceding four years
may be used.)
|
→
|
If not, go to part IX.
|
| |
I
V
Yes
I
V
|
|
|
|
4.
|
Is less than 50% of the group’s gross income derived from each country (except for
The Netherlands)? (See paragraph 3, subparagraph c.)
(If this requirement is not met, the average gross income for the preceding four years
may be used.)
|
→
|
If not, go to part IX.
|
| |
I
V
Yes
I
V
|
|
|
|
5.
|
Is 25% or less of the headquarter company’s gross income derived from the United States
of America? (See paragraph 3, subparagraph d.)
(If this requirement is not met, the average gross income for the preceding four years
may be used.)
|
→
|
If not, go to part IX.
|
| |
I
V
Yes
I
V
|
|
|
|
6.
|
Does the headquarter company have independent discretionary authority to carry out
the functions mentioned in question 1 and does the headquarter company exercise this
authority? (See paragraph 3, subparagraph e.)
|
→
|
If not, go to part IX.
|
| |
I
V
Yes
I
V
|
|
|
|
7.
|
Is the income derived from the United States of America derived in connection with
the group’s business activities
or
is it incidental to the group’s business activities?
(See paragraph 3, subparagraph g.)
|
→
|
If not, go to part IX.
|
| |
I
V
Yes
I
V
|
|
|
|
8.
|
The person satisfies the conditions of paragraph 3 of article 26 of the Convention.
You may indicate this in question 4 of form ‘IB 93 USA’ and sign the form.
|
| |
Please enclose documentary evidence in support of your entitlement to treaty benefits,
such as for example:
|
| |
– excerpts from the articles of association and/or the annual accounts showing that
the nature of the headquarter company’s authority and activities satisfy the requirements
of subparagraph a of paragraph 3 of article 26 of the Convention.
|
| |
– evidence that the headquarter company was engaged in a number of the following functions;
pricing, marketing, internal auditing, internal communications and management.
|
| |
– a description of the structure of the multinational group, with information on the
residence, ownership and business activities of the corporations for which the headquarter
company carries out activities.
|
| |
– a copy of the group’s profit and loss account, with an overview of the source of
the gross income, showing that the 10 percent, the 50 percent and the 25 percent gross
income tests have been met.
|
| |
– a comparison of the rate of taxation of the applicant to the rate at which an active
trade or business would be subject.
|
| |
– a description showing the nature of the income derived from the United States of
America.
|
| |
– other relevant documents.
|
IX. The test for shipping and air transport enterprises
[Regeling vervallen per 21-08-2010 met terugwerkende kracht tot en met 13-08-2010]
Answer the following questions to determine whether the conditions of article 26,
paragraph 6 of the Convention are satisfied.
|
1.
|
Does the person in question derive profits from operating ships or aircraft in international
traffic?
(Profits as referred to in article 8 of the Convention.)
|
→
|
If not, go to part X.
|
| |
I
V
Yes
I
V
|
|
|
|
2.
|
Is more than 50% of the interest in the person in question owned directly or indirectly
by qualified persons?
|
→
|
If yes, go to point 6.
|
| |
I
V
No
I
V
|
|
|
|
3.
|
Is more than 50% of the interest in the person in question owned directly or indirectly
by qualified persons or by individuals who are residents of a third state?
|
→
|
If yes, go to question 5.
|
| |
I
V
No
I
V
|
|
|
|
4.
|
Is the person in question a company whose shares are primarily and regularly traded
on an established securities market in a third state?
|
→
|
If not, go to part X.
|
| |
I
V
Yes
I
V
|
|
|
|
5.
|
Does this third state grant exemption for the profits mentioned in question 1 to American
citizens and corporations under the same conditions as the exemption granted for these
profits by the United States of America?
|
→
|
If not, go to part X.
|
| |
I
V
Yes
I
V
|
|
|
|
6.
|
The person satisfies the conditions of section 6 of article 26 of the Convention.
You may indicate this in question 4 of form ‘IB 93 USA’ and sign the form.
|
| |
Please enclose documentary evidence in support of your entitlement to treaty benefits,
such as for example:
|
| |
– a description of the applicant’s activities or interests in the United States and
the nature of any benefits derived under article 8 of the Convention.
|
| |
– with respect to each qualified person relied on in meeting the 50 percent threshold,
documents showing: the person’s name, country of residence, and the percentage of
the value of the applicant’s stock that it owns directly and/or indirectly.
|
| |
– with respect to each qualified person (other than an individual, state, political
subdivision, local authority, or United States citizen) documents similar to those
required to meet the conditions under parts I, II and III of this flow chart to substantiate
such person’s status as a qualified person.
|
| |
– with respect to each third state individual resident relied on in meeting the 50
percent threshold, documents showing the individual’s name, country of residence,
and percentage of the value of the applicants stock that the individual owns directly
and/or indirectly.
|
| |
– with respect to an applicant that is primarily and regularly traded on an established
securities market in a third state:
|
| |
* a letter from the third country established securities market confirming the company’s
temporary or definite listing.
|
| |
* documents showing the monthly or annual trading in applicant’s shares.
|
| |
– documents supporting that each applicable third state grants an equivalent exemption
to United States citizens and legal entities for shipping and air transportation profits.
|
| |
– other relevant documents.
|
X. The safety-valve provision
[Regeling vervallen per 21-08-2010 met terugwerkende kracht tot en met 13-08-2010]
(for persons who do not meet one of the preceding tests)
|
The tax authorities of the United States of America may grant the benefits of the
Convention to a person who does not meet one of the preceding tests. A guideline in
the decision will be whether one of the principal objectives of the establishment,
acquisition or maintenance of this person or the conduct of its operations is or was
to obtain benefits under the Convention. A request for an advance approval of the
safety-valve provision may be submitted to the competent authority of the United States
of America. (See paragraph 7 and the Memorandum of Understanding XIX and XXI.)
|
|
I
V
|
|
A person who desires to obtain an advance approval for application of paragraph 7
of article 26 of the Convention must submit a request to that purpose to the competent
authority of the United States of America (Assistant Commissioner (International),
Attention: Tax Treaty Division, Internal Revenue Service, PO Box 23598, Washington
DC 20026, United States of America) who must consult the competent authority of The
Netherlands, being the Directorate for International Fiscal Affairs of the Ministry
of Finance before rejecting such a request. You are requested to indicate at question
2 of form ‘IB 93 USA’ that a favourable determination has been obtained from the US
competent authority and to enclose the written confirmation of such a favourable determination
and the facts and circumstances on which this favourable determination is based, so
that the Inspector is able to determine whether there has been a change in faces and
circumstances since the favourable determination was obtained.
|
XI. The triangular cases provision
[Regeling vervallen per 21-08-2010 met terugwerkende kracht tot en met 13-08-2010]
(for persons who derive interest or royalties form the United States of America)
|
1.
|
Does the person in question meet one of the tests of parts I through IX, or has the
person in question obtained a favourable determination from the American competent
authorities for application of the safety-valve provision (paragraph 7 of article
26 of the Convention; see part X), with respect to the interest- or royalty income
derived from the United States of America?
|
→
|
If not, the applicant is not entitled to treaty benefits with respect to this interest-
or royalty-income.
|
| |
I
V
Yes
I
V
|
|
|
|
2.
|
Is the interest- or royalty income attributable to a permanent establishment of the
applicant in a third state? (See paragraph 8 of article 13 and paragraph 6 of article
13)
|
→
|
If not, you may tick question 5a of form ‘IB 93 USA’.
|
| |
I
V
Yes
I
V
|
|
|
|
3.
|
Are the profits of the permanent establishment subject to a tax rate of at least 50%
of the general rate of corporation tax applicable in The Netherlands?
|
→
|
If yes, you may tick question 5b of form ‘IB 93 USA’.
|
| |
I
V
No
I
V
|
|
|
|
4.
|
– In the case of interest-income, is this income derived in connection with or incidental
to the active conduct of a trade or business carried on by the permanent establishment?
(See paragraph 8 of article 12)
– In the case of royalty-income, is this income received as a compensation for the
use of, or the right to use, intangible property produced or developed by the permanent
establishment? (See paragraph 6 of article 13)
|
→
|
If yes, you may tick question 5b of form ‘IB 93 USA’.
|
| |
I
V
No
I
V
|
|
|
|
5.
|
The United States of America may subject this interest- or royalty income to a rate
of tax of no more than 15% of the gross amount of such income.
|
| |
You have to indicate this by ticking question 5c of form ‘IB 93 USA’.
|
| |
If question 5b of form ‘IB 93 USA’ has been ticked, please enclose documentary evidence
in support of your entitlement to treaty benefits, such as for example:
|
| |
– a description of the third country permanent establishment’s active trade or business.
|
| |
– documents establishing the third country’s tax rate.
|
| |
– documents showing the relationship of the United States interest income to the third
country permanent establishment’s active trade or business.
|
| |
– proof that the permanent establishment itself produced or developed intangible property.
|
| |
– other relevant documents.
|
Waarschuwing! Er is op dit moment een verstoring waardoor u soms een foutmelding te zien krijgt.
Probeer het later opnieuw. Onze excuses voor het ongemak, wij werken hard aan een
oplossing.