The Netherlands as a tax-haven : investigating changes in Dutch tax laws in the period 2012-2017

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The Netherlands as a Tax-Haven

Investigating Changes in Dutch Tax Laws in the period 2012-2017

Abel Driessen 11037601

Political Science

Continuity and Change in Global Capitalism Instructor: Jan Fichtner

25 Juni 2018 Word Count: 8104

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Content

I. Introduction 3.

II. Theoretical Framework 5.

a. Offshore Financial Centers 5

b. The Netherlands as an OFC 7

c. The European Commission: Tax Papers 9

III. Methodology 10.

IV. Analysis 12.

a. The Innovation Box 12

b. Sweetheart Deals (Tax Rulings) 15

c. Tax Treaties 18

V. Conclusion 20.

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I. Introduction

Since the financial crisis of 2007/2008, there has been increasingly more attention for tax evasion by both companies and wealthy individuals. The European Commission, for example, estimates that around a trillion euros in taxes are not paid every year (European Commission, 2018). Another example comes from the International Monetary Fund (IMF), which has a more conservative estimate, but still one of 600 billion dollars (Turner, G., 2017). Besides, the complex legal structures used by companies and individuals to avoid paying taxes has gotten more exposure. First with the release of the Panama Papers in 2016, and later the Paradise Papers in 2017. These journalistic investigations looked into the wealth that was stored in tax havens and from where this wealth originated (panamapapers.nl, 2018; icij.org, 2018). Examples of famous individuals named in those investigations are Bono, Christiano Ronaldo, and Emma Watson (dw.com, 2017; Prenderville & Gilpin, 2017; Morgan, 2016). Yet, this is just a fraction of a list containing celebrities, businesspeople, and politically influential individuals.

Even more impactful is the tax-practices used by multinational companies to lower their tax burden. For example, in the United Kingdom, Starbucks paid 8.6 million pounds in taxes over a period of 14 years over a reported 3 billion pounds in sales, which means they paid around 0.29% in taxes over the total amount of sales (Davies, 2015). This constitutes a large loss for the government budget in the UK. However, the UK is certainly not the only country where the government budget suffers from tax evasion. The countries who suffer the most in relative terms are developing countries like Pakistan, which lost 40% of tax revenues due to tax evasion in 2017 (Turner, 2017). The effect of this is twofold: the government has to function with less money while growing inequality causes the percentage of the population who need support from the government to grow (Neckerman & Torche, 2007). This further increases inequality which has a lot of hurtful consequences for the societies concerned (Idem: 350-351).

In these tax evasion schemes, a key role is played by the fiscal structure established by different nation states. The most notorious examples are the ‘classical’ tax havens, like the British Virgin Islands, the Cayman Islands, and Luxembourg. However, in a recent paper by Oxfam Novib investigating the worst tax havens, the Netherlands was appointed the third place on the list of worst tax havens (Berkhout, 2016a: 4). The Netherlands were also frequently mentioned in the Paradise and the Panama Papers. Yet, the role the Netherlands play is a little more difficult than just being a nation where the wealthy store their money.

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4 The Netherlands is a so-called conduit-Offshore Financial Centre (OFC): a country through which money is transferred because it barely taxes the transfer of capital to other countries (Garcia-Bernardo et al., 2017: 2). The concept of conduit-Offshore Financial Centre will be further elaborated in the theoretical framework, but this short definition is enough for now.

Since the crisis, there has been increasingly more attention for the role of the Netherlands as a conduit-OFC and the Dutch government has gotten a lot of criticism for their fiscal malpractices (European Commission, 2016: 151; Kooiman, 2017; Witteman, 2017; Boffey, 2017). Yet, the Dutch government denies responsibility for tax evasion or for facilitating ‘aggressive tax planning’ (Wiebes, 2016; European Commission, 2016: 8). These conflicting views are at the center of this research. I want to investigate whether the Dutch government has changed its tax laws to counter, or at least not facilitate, tax evasion. I want to do this by investigating a particular period and have a look at how the tax laws changed and what this did for the position of the Netherlands as a tax haven. To evaluate its position as a tax haven, I will have a look at several factors, which are believed to support the position of the Netherlands as a tax haven. I will distill these factors from different reports about tax evasion and from the scientific literature (Berkhout, 2016a: 13; Berkhout, 2016b: 19; European Commission, 2015: 151; Weyzig, 2013: 913-914). The period in which I will be investigating starts in 2012 with the installment of cabinet Rutte II and ends in 2017 with the dissolution of Rutte II. With this said, my research question will be: How did the Dutch tax laws change in

the period 2012-2017 and how did this influence the position of the Netherlands as a tax haven?

The relevance of this paper is twofold: it has a societal relevance and a scientific relevance. The societal relevance stems from the fact that, with this paper, I will contribute to the ongoing debate in the mainstream media, about the question whether the Netherlands is a tax haven. In this debate, some parties in the opposition accuse the Dutch government, led by the People’s Party for Freedom and Democracy (VVD), that the Netherlands is, or are turning into, a tax haven. On the other hand, the government denies these accusations (Wiebes, 2016). I hope to shine a light on the claims made by both sides. The scientific relevance arises from the practical method I use to conduct my research. By focusing on one specific case, the Netherlands, I will be able to conduct a more rigorous investigation, than I would have been able to do if I investigated multiple cases. Besides, by making use of discourse analysis, I will be using a method which is quite different from the more quantitative research which is normal for articles about tax evasion and maybe provides additional insights into the problem.

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5 The rest of this paper has the following structure: first, in the theoretical framework, I will investigate the concept of tax havens, I will look into the role of the Netherlands in different tax evasion structures and I will distill three factors which contribute to these structures. Second, in the methodology section, I will elaborate on how I am going to go about my research. After that, I will perform my analysis by looking at the relevant data, which are Dutch parliamentary debates and documents, and I will interpret this data. In the concluding section, I will answer my research question, I will point out some of the shortcomings in my research and, finally, I will suggest some further venues for future research.

II. Theoretical Framework

a. Offshore Financial Centers

In the introduction, I already mentioned Offshore Financial Centers (OFC). But, what is an OFC and what is the difference between an OFC and a tax haven? First, there is no real difference between a tax haven and an OFC, except that OFC is a more scientific term and does not have the negative connotation (Nesvetailova & Palan, 2014: 21). In this paper, I will be using the terms OFC and tax haven interchangeably. Second, the question of what an OFC is, is difficult to answer, because there is still no universally accepted answer (Fichtner, 2015: 2). Another difficulty in pointing out OFCs is the strong policy-concerns linked to the use of the term OFC (Garcia-Bernardo et al., 2017: 2). Despite these difficulties, a first definition is given by Zorome (2007), who describes an OFC as: “providing financial services to nonresidents on a scale that is incommensurate with the size and the financing of their domestic economies’’(p. 7). To illustrate this definition: the Cayman Islands has a GDP of 2.7 billion US dollars (USD), and it has 1.640 billion USD in foreign bank deposits. This is a ratio of 607,4 (Fichtner, 2015: 5)., Thus this is a clear example of an economy which is incommensurate with the amount of foreign capital. A small but significant addition to the definition given by Zorome is given by Garcia-Bernardo et al. (2015) who state that OFCs "are jurisdictions that attract financial activities from abroad through low taxation and lenient regulation" (p.1). Thus, besides attracting a disproportionate amount of foreign capital, OFCs attract this capital by (actively) offering low taxation. A definition which combines these two definitions quite nicely comes from Nesvetailova & Palan (2014): “OFCs (…) are financial centers specializing in nonresident finance” (p. 22). This is the definition that will be used in the rest of the paper.

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6 Next, I will further elaborate on the concept of OFCs, by making an important distinction between two different kinds of OFCs: sink-OFCs and conduit-OFCs. The Cayman Islands are a perfect example of a sink-OFC. Like mentioned before, the foreign bank deposits to GDP ratio was 607,4 (Fichtner, 2015: 5). The method which calculates these ratios is called the ‘off-shore intensity ratio’, and it relates a countries GDP to portfolio investment, international banking assets, and more. (ibid). This method is valuable to identify these so-called ‘sink-OFCs’, which are countries that attract and retain foreign capital by Having a low or just no corporate taxes. These countries tend to have small economies, making the ‘off-shore intensity ratio’ very well suited to identify these sink-OFCs (Garcia-Bernardo et al., 2017: 2). Again, the Cayman Islands hold foreign assets which have a value of more than 1.560 times its GDP (Fichtner & Hennig, 2013: 1). Yet, the second type of OFC, a conduit-OFC, are less easily identified using the ‘off-shore intensity ratio’ (Garcia-Bernardo et al., 2017: 2). This is because conduit-OFCs work differently. Conduit-OFCs are “countries that are widely perceived as attractive intermediate destinations in the routing of investments. Conduit-OFCs typically have low or zero taxes imposed on the transfer of capital to other countries, either via interest payments, royalties, dividends or profit repatriation” (ibid). In this way, companies can transfer profit from one country to invest in another part of the world paying no or little tax (ibid). A recent effort to develop a method that helps in identifying conduit-OFCs is identifying the position a country has in the network of global corporate ownership (ibid). In the most basic sense, this method looks at how capital flows through corporate ownership chains, which means that capital flows from company A to company B, which is owned by company A (ibid). The method also uses some mathematic models, but those are not relevant for this paper.

What is relevant, are the results of the research by Garcia-Bernardo et al. (2017). They find that the two largest conduit-OFCs are the United Kingdom and the Netherlands (idem: 6). Thus, in the scientific literature, the Netherlands is classified as an OFC, and more specifically as a conduit-OFC. Maybe a bit dated, but in 2009, Foreign Direct Investment (FDI) diverted through the Netherlands amounted up to 1,600 billion euros, which made it the largest pass-through country for Foreign Direct Investments (FDIs) at the time (Weyzig, 2013: 914). This too suggests that the Netherlands is not just a small conduit for foreign capital flows.

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7 b. The Netherlands as an OFC

The next step in this theoretical framework is investigating what makes the Netherlands such a popular intermediate destination for capital. The research by Zucman et al. (2018) shows that a large number of profits are shifted to the Netherlands from a lot of OECD countries (p. 31). These profits are then shifted through to other countries, for example, Brazil, where 25% of inward direct investment came from the Netherlands (Zucman, 2013: 1325). The benefits of being such a tax haven are that, despite having tax rates close to zero, the tax revenue of tax havens is larger than that of non-tax havens (Zucman et al., 2018: 21). A large part of that revenue they get out of taxing profits of foreign companies, whom they attract with the low tax rates (ibid). This is also the case for the Netherlands (idem: 41).

To make use of these low tax rates, companies use make use of several fiscal instruments. There are three important instruments, which are: innovation boxes, sweetheart deals, and an extensive network of tax treaties, which allow for ‘tax treaty shopping’ (Berkhout, 2016a: 13; Berkhout, 2016b: 19; Weyzig, 2013: 913-914). These three instruments are also identified by the European Commission (European Commission, 2016: 121).

‘Innovation boxes’ (also known as: ‘patent boxes’) are a special tax regime companies can use on profits derived from intellectual property revenues. They reduce taxes on profits that are derived from any product that incorporates patents (Berkhout, 2016b: 19). The aim of such a patent box is to stimulate companies to develop new innovative patented products (gov.uk). Yet, according to both the European Commission and Oxfam Novib, those patent boxes can be used to evade taxes (European Commission, 2016: 62; Berkhout, 2016b: 19). They suggest that companies transfer the royalties they received in one nation to another nation, where those royalties are taxed at the lower ‘patent box tax rate’, which implies a loss in tax revenues for the state where the actual innovation took place (Berkhout, 2016b: 19). Yet, according to the Dutch government, the patent boxes cannot be used as a way to evade taxation. This is because there are ‘substance criteria’ (Kamerstuk 34302 nr. 111, 2016: 9). These criteria state that only those patents which have largely been produced in the Netherlands deserve the lower tax rate (ibid). Still, the effectiveness of such a patent box in increasing Research & Development (R&D) is disputed (Berkhout, 2016b: 19). For every euro of tax discount, 0,54 euro cents is invested in R&D (Kamerstuk 34302 nr. 111, 2016: 16). Yet, countries lacking this kind of innovation boxes or similar regimes, like Germany, have been more successful in attracting and promoting innovation (CPB.nl, 2015). Thus,

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8 patent boxes are a very questionable instrument, both due to being associated with tax evasion and an apparent lack of effectiveness.

The second factor contributing to the position of the Netherlands as an important OFC is the so-called ‘Sweetheart Deals’. Sweetheart deals, also called Advance Pricing Agreements (APA), are a special type of tax ruling that takes the form of secret agreements between multinational corporations and governments to set future taxation (Ryding, 2018: 1). These kinds of deals improve the business climate of a particular country and help attract large multinational corporations (ibid; Zucman et al., 2018: 21). The problem with these APAs is that they severely hinder the ability of tax administrators to monitor and correct corporations, that they are binding for a period up to 5 years, and that they are secret to both the public and parliament (Ryding, 2018: 3). An example of an APA is the deal the Dutch tax authorities made with multinational Procter & Gamble. To increase the chances of P&G establishing an office in the Netherlands, the tax authorities made a deal with P&G, which saved P&G 169 million USD in tax remittances (Kleinnijenhuis, 2017). Despite the fact that this particular deal was faulty, it did not comply to the procedures set by the tax authorities itself, it is unknown whether there are more of these kinds of deals, due to the secretive nature of sweetheart deals (ibid). Thus, these kinds of deals can cause a significant loss in tax revenues and whether the attraction of a large corporations offsets these losses remains open for debate.

The last factor providing support for the position of the Netherlands as an OFC is the extensive network of tax treaties the Netherlands has with different nations. This allows multinational companies to make use of ‘tax treaty shopping’ (Weyzig, 2013: 913-914). Tax treaty shopping is a situation in which a company or individual, who resides in country A and makes a profit in country B, uses a tax treaty between country B and country C, to avoid paying taxes when transferring money from country A to country B. Instead, it transfers the money via country C, who has beneficial tax treaties with both countries and thus lowers the amount of taxes that are paid (idem: 912-913). Originally, the idea of such treaties is that they prevent double taxation, but due to the fact that the treaties of different countries do not always connect, companies make use of the loopholes that arise from these mismatches to go tax treaty shopping (idem: 911-912). The Netherlands is quite often used as a conduit for profits a corporation does not want to be taxed in their home country. They choose the Netherlands because ‘the Netherlands has a relatively large network of almost 100 investment treaties and these contain a broad definition of investors that facilitates treaty shopping’

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9 (idem: 914). Thus, the Netherland is a favorable intermediate destination for capital, because of the favorable tax treaties, it has with a lot of countries.

The three factors described above, innovation boxes, sweetheart deals and, tax treaty shopping, are designated as important reasons why the Netherlands are seen as a tax haven (Berkhout, 2016b: 19-20). Though, a remark should be made about the innovation box, since these could also be seen as a form of tax treaty shopping. Yet, in this paper, I will deal with both of them separately, because they are quite often dealt with separately in different reports (European Commission, 2016: 62). In the next section, I am going to take a look at a report the European Commission wrote about tax evasion in EU member states.

c. The European Commission: Tax Papers

Since the role of OFCs has been getting increasingly more attention in the last couple of years, the European Commission (EC) too has had increasingly more attention for this subject (idem: 6). In their paper Study on Structures of Aggressive Tax Planning and Indicators (2016), the commission tried to create a list of indicators which allow what they call

Aggressive Tax Planning (ATP) (ibid). ATP is defined as “taking advantage of the

technicalities of a tax system or of mismatches between two or more tax systems for the purpose of reducing tax liability. Aggressive tax planning can take a multitude of forms. Its consequences include double deductions (...) and double non-taxation” (idem: 15-16). The EC identifies the different ATP structures and investigates which EU member states are vulnerable to ATP (idem: 17). To investigate which member states enabled or even promoted ATP, the Commission came up with a list of indicators (idem: 150). These indicators are derived from three known ATP structures: debt shifting, the location of intangible assets and intellectual property, and strategic transfer pricing (idem: 22). Off the 33 indicators identified by the European Commission, the Netherlands scored positively on 17 indicators, the most in the whole Euro-zone (idem: 151).

The EC suggests that the indicators have to be divided into three different classes: active indicators, passive indicators, and lack of anti-abuse rules. An active indicator is an indicator that directly promotes an ATP structure. These active indicators are the main source of tax benefit offered by an ATP structure (idem: 51). A passive indicator is an indicator that does not by itself promote an ATP structure, but which is a necessity for an ATP structure to be able. Most of the time, these passive indicators are created to prevent double or unfair taxation (idem: 52). The last type of indicator is the lack of anti-abuse rules. These rules are installed to prevent companies to avoid taxes (ibid). The score of the Netherlands on these

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10 three different indicators is: 8 passive indicators, 3 active indicators and 6 times a lack of anti-abuse rules (idem: 150). A last important notification made in the report is that some of the passive indicators and a lack of anti-abuse rules can interact in such a way as to create yet another ATP structure (idem: 53). In the Netherlands, this is the case for three kinds of combinations (idem: 121).

III. Methodology

The research I will be conducting is of a qualitative nature. It is a case study in which I focus on the case of the Netherlands by investigating the discourse in parliamentary documents on the subject of tax evasion, more specifically the discourse on the three instruments identified before. The advantage of a case study is that a single case can be studied intensively and, they help to investigate issues that have a wider relevance, and are applicable to other contexts (Halperin & Heath, 2012: 205).

The research question is compromised out of two different questions: ‘how did the position of the Netherlands as a tax haven change in the period 2012-2017?’ and ‘which changes were made in the Dutch tax laws in the period 2012-2017?’. Thus, to find the answer to my research question, I will have to answer these two sub-questions. Before answering these questions, I have to investigate which specific tax laws and arrangements are used by conduit-OFCs to attract foreign capital. This has been done in the theoretical framework. There I investigated what conduit-OFC’s are and I used the scientific literature and the EC’s

Taxation Papers to get an overview of factors which promote aggressive tax planning for

member states of the European Union, and, more specifically, for the Netherlands. The second step is that I will have to investigate which Dutch tax laws specifically are relevant and find out whether the tax laws and arrangements outlined in the theoretical framework changed in the chosen period. This period starts 5 November 2012 when the coalition Rutte II was installed, and ends 26 October 2017, with the dissolvement of Rutte II. There are two reasons why I chose this period. The first reason is that in this period the increasing attention for tax evasion may cause the Dutch government to start speaking about tax evasion in a different fashion. This new attention came from both the EC initiatives and the BEPS-project of the OECD (OECD.net, 2018). Second, due to the limited size of this paper, I had to choose a relatively short period in which to analyze tax laws. Choosing the cabinet Rutte II seemed a good choice since it is the only cabinet in the near past who had finished their term

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11 completely and because they were confronted with the release of both the Panama and Paradise Papers (parlement.nl, 2018).

To answer the first sub-question, I will need to make a selection of the indicators that the

Tax Papers describe as promoting tax evasion (or aggressive tax planning). What I would

like to do is combine some of these indicators with the three factors mentioned earlier, innovation boxes, sweetheart deals, tax treaty shopping, which make the Netherlands popular as a tax haven. Patent boxes are also noted in the EC report as indicator 17 (European Commission, 2016: 62). There is a slight, but insignificant difference between the conceptualization given in the theoretical framework and the EC report, so I will keep using the definition given before. The sweetheart deals are also mentioned in the EC report as indicators 30 and 31 (idem: 66). The EC uses two different indicators, because they make a distinction in the kind of deals a tax authority can make: rulings on interest-rates or royalties and rulings on excess-profits (ibid). Except for this distinction, the definition of a tax ruling given by the EC is the same as the one given in the theoretical framework. The last factor, tax treaty shopping, is more difficult since tax treaties involve a lot of different aspects. Tax treaty shopping is not mentioned in the EC report, but what is mentioned are mismatches between tax deductions in different countries, resulting in companies shifting their capital to reduce taxation. These mismatches often come from a combination of indicators (idem:53). The combination mentioned in the EC report, which most closely conforms to the description given in the theoretical framework, is the combination between indicator 1 and 4, which is capable of facilitating structures where dividends from one country are routed through a second country to a third country without being taxed in any of the countries (ibid). To summarize, the indicators I will investigate are: 17, 30, 31 and the combination of indicator 1 and 4.

A second part to answer the first sub-question is to relate the right indicators to the right tax laws. For this, I again turn to the report of the European Commission (2016). They elaborate on the different indicators and explain what those indicators try to measure and do this for every individual country. Thus, they explained which practices of the Dutch government caused them to score positively on that specific indicator (idem: 120-123). This shows me which laws are relevant for which indicator and which indicators are not. For indicator 17, I will have to look at the Dutch ‘innovatiebox’ (Kamerstuk 34302 nr. 3, 2013: 1). For indicators 30 and 31, I will focus on the Corporation Tax Law article 17 and 17a, which deal with taxes for foreign taxpayers (overheid.nl, 2018). The last factors, the combination between factor 1 and 4, is a little more difficult to relate to a single tax law since

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12 it deals with tax treaties between a lot of countries and the Netherlands. Thus, to still get a picture of how these tax treaties changed, I will analyze parliamentary debates about tax treaties in general, with perhaps some country-specific examples, to see whether there is a change in discourse about these treaties.

For the second sub-questions, I have to find a way to investigate changes in the Dutch tax laws in the period 2012-2017. This will be done by investigating parliamentary debates which were held on the tax laws relevant to the indicators mentioned before, and parliamentary documents, in the period 2012-2017, thus under the cabinet of Rutte II. This way, I provide a picture which clearly paints the evolvement of discourse about tax laws. The data needed to answer this question I obtain from the official website from the Dutch government. All the official, non-classified documents are posted there, so both new laws and parliamentary debates (overheid.nl, 2018). I will analyze 54 official documents in total.

In the analysis, I will answer the two sub-questions at the same time. I will investigate the parliamentary debates and policy changes relevant to the chosen indicators to investigate how the position of the Netherlands as a tax haven changed over the years. Hence, I will be able to answer the question whether the tax laws were changed in the period 2012-2017 and how these changes affected the position of the Netherlands as a conduit-OFC according to the criteria of the European Commission.

IV. Analysis

The analysis will consist out of three parts. In each part, I will focus on how each of the different factors, which contribute to the position of the Netherlands as a tax haven, were discussed in parliamentary documents and debates and how they changed or did not change during the period 2012-2017. First, I will address the innovation box, second I will talk about the sweetheart deals, and the third and last part will contain a description of how the Dutch government handled tax treaty shopping.

a. The Innovation Box

The innovation box (IB) was a tool created by the Dutch government to realize the goals as they were described in the nota Werken aan Winst (Working on profit), a note which had the goal to enhance the competitive position of the Netherlands in an increasingly globalizing world (Kamerstuk 30572, nr. 2, 2006: 2). The idea of the IB, as described earlier in the theoretical framework, is to stimulate innovation by giving a tax exemption on profits gained

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13 from research & development (R&D) (idem: 6). In 2010, the IB was officially installed by then State Secretary Jan-Kees de Jager (Kamerstuk 32128 nr. 10, 2009: 10-11). The State Secretary promised that the IB would be evaluated in three years (idem: 11). This is where the research period begins.

Before June 2013, there was not a parliamentary debate on the subject of IB since the evaluation would take place after three years. Yet, when it was time to evaluate the IB, the State Secretary Frans Weekers stated that the three years were overly ambitious and that there was not enough quantitative data to properly evaluate the IB (Kamerstuk 33402 nr. 62, 2013: 2). State Secretary Weekers had to resign in January 2014 and was succeeded by Eric Wiebes (parlement.nl, 2018). He was the first who had to deal with arising questions about the IB. Member of Parliament (MP) Pieter Omzigt (CDA), had several questions about the IB, most notably about possible misuse of the innovation box by foreign companies (Aanhangsel 576, 2014: 1). Although the State Secretary states that he is not familiar with any such practices, he reassures MP Omzigt he will use this information for the evaluation of the IB, to prevent future misuses (idem: 2-3).

Finally, at the beginning of 2015, there is a preliminary evaluation of the IB and the promise that the full evaluation will be presented to parliament at the end of the year (Kamerstuk 34002 nr. 83, 2015; Kamerstuk 34002 nr. 98, 2015). Despite being just a preliminary evaluation, some MPs still have questions about the goals and the functioning of the IB (Handelingen Vergaderingnummer 25, 2017). The question was whether the IB is just for companies who perform their R&D in the Netherlands. The answer, this time from Minister Henk Kamp, was quite explicit in explaining that foreign companies should not and could not use ‘post box’ addresses to make use of the tax exemption provided by the IB (idem: 1). This is the first example of a government official, in this case, Minister Kamp, stating that they want to prevent tax evasion by misuse of the IB.

At the beginning of 2016, Staten Secretary Wiebes finally delivered the evaluation of the IB to parliament (Kamerstuk 34302 nr. 111, 2016: 4). The evaluation was done by the independent research agency Dialogic. This report mainly investigated the effectiveness of the IB, but also mentioned the threat of misuse of the IB (Den Hertog et al., 2015: 34). Also, the report suggests some ways in which the government could adjust the IB to prevent misuse (Kamerstuk 34302 nr. 111: 5). Again, a government official, this time State Secretary Wiebes, stated that tax evasion by misuse of the IB should be contested (ibid). In response, several MPs made a list of questions for the State Secretary (Kamerstuk 34302, nr. 116). In the following part, I will shortly discuss the questions relevant to the subject of tax evasion.

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14 One of the MPs wondered if foreign companies could make use of the IB for the purpose of tax evasion (idem: 9). State Secretary Wiebes very clearly states that this is not the case (ibid). He mentions several measures that prevent the misuse of the innovation box, most notably strong substance criteria, which decree that a major part of the R&D must take place in the Netherlands to qualify for the IB (ibid). Besides, the State Secretary suggests that to make sure there is no misuse of the IB, it should be aligned to the criteria that were developed by the OECD (ibid; OECD.com, 2018). As the answer to a follow-up question about in how far the Dutch IB is in line with the requirements of the OECD, the State Secretary states that by the end of the year, the Dutch IB will meet the requirements of the OECD (Kamerstuk 34302 nr. 120, 2016: 13). This is the case, since a year later the State Secretary informs parliament that the Dutch IB was approved by the OECD (Kamerstuk 34552 nr. 85, 2017: 1).

Following the release of the report and the answers the State Secretary gave to the MPs, there was a debate in parliament about the IB (Kamerstuk 34302 nr. 120, 2016). In this debate were discussions on several aspects of the IB, but here I just want to focus on the aspects that relate to tax evasion. The MP who brings this up, Merkies (SP), states that the IB is often associated with aggressive tax planning and asks the State Secretary how the OECD judges the Dutch IB (idem: 8). The State Secretary confirms the first statement and responds that the Dutch IB is largely in line with the guidelines as set by the OECD (idem:11). He later repeated this, by stating that the OECD did not have a critique on the Dutch IB specifically (idem: 17). He also suggests that in the future the IB will be further aligned to both OECD- and European rules (idem: 15-16). Thus the State Secretary again shows a commitment to preventing tax evasion by companies through the use of the IB.

There were no further parliamentary debates or documents about the subject of the IB. To conclude this section, I will give a short recap of what was discussed above and the implications stemming from these debates. What is perhaps most important to note, is the strong commitment to counter aggressive tax planning by companies through the use of the IB. Both Minister Kamp and State Secretary Wiebes stated that they wanted to prevent tax evasion (Handelingen Vergaderingnummer 25, 2017: 1; Kamerstuk 34302, nr. 116: 9). Also, State Secretary Wiebes stated that he wanted to align the Dutch IB to norms that conform to guidelines set by the OECD and the EC (Kamerstuk 34302 nr. 120, 2016: 15-16). This alignment happened at the end of 2017 (Kamerstuk 34552 nr. 79, 2017: 19). This leaves the question whether the IB is really contributing to the position of the Netherlands as a conduit-OFC.

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15 Berkhout (2016a) suggests that the IB costs the Dutch government millions of dollars, and leads to just a small increase in spending on innovation (p. 13-14). This is confirmed by the report the State Secretary himself send to parliament (Kamerstuk 34302 nr. 111, 2016: 4). Yet, this money is not lost due to tax evasion, but due to a tax exemption provided by the Dutch government. A tax exemption which is in line with the OECD standards for IBs (Kamerstuk 25087 nr. 112, 2015: 15). Losing tax incomes due to a tax exemption is not tax evasion if it achieves its goal. The goal of the Dutch IB was twofold: stimulating innovation and promoting the business climate (Kamerstuk 34302 nr. 120, 2016: 9). The effectiveness of the IB on innovation was 0,54€ in innovation for every euro in taxpayer money, making it not really effective (European Commission, 2015: 119). Yet, the second goal, creating a favorable business climate, cannot be quantified. Still, a favorable corporate tax is qualified by companies as an important reason to settle in a particular country (Kamerstuk 34302 nr. 116, 2016: 16-17). Thus, although it may not be the best way to promote innovation, it does contribute in some way to the attraction of foreign companies. Thus, the suggestion by Berkhout (2016a) that having an IB is ‘losing money’, should be doubted (p. 14). Also, the scope at which the IB is used for tax evasion, is, in the Netherlands, probably not that big, due to the fact that the Dutch IB is in line with both OECD- and EC-requirements to prevent aggressive tax planning. This is not to suggest that an IB never gets misused, they do, but in the Dutch case, there are a lot of regulations in place to try and prevent this.

b. Sweetheart Deals (Tax Rulings)

The sweetheart deals, also called Advanced Pricing Agreements (APA) or ‘tax rulings’ in the debates in the Dutch parliament, is an instrument the Dutch government uses to promote the business climate of the Netherlands (Kamerstuk 31066 nr. 228, 2015:1). An important problem of these tax rulings is their secretive nature, something which is also confirmed by State Secretary Wiebes (idem: 2). Due to the confidentiality as written down in ‘Artikel 67 van de Algemene wet inzake rijksbelastingen’, no government official can disclose any

information about taxpayers, unless when the minister deems this necessary (Algemene wet inzake rijksbelasting, artikel 67.1; Algemene wet inzake rijksbelasting, artikel 67.3). Yet, the State Secretary does not deem this necessary most of the time (Kamerstuk 31066 nr.258, 2016). This secrecy and the example of Procter & Gamble given before causes a lot of suspicion about the tax rulings from MPs (Handelingen 38, 2013: 1). On the other hand, there is State Secretary Wiebes who, in response to questions asked about the tax treaties, states that those tax treaties are just an instrument to provide certainty to taxpayers (e.d.

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16 corporations). He continues by stating that the tax payment does not change, and thus, that tax treaties are not a form of government support or tax evasion (Kamerstuk 31066 nr. 191, 2014: 7). Despite this statement, the European Commission decided otherwise and started an investigation into the tax ruling the Dutch tax authorities had made with Starbucks (European Commission, 2015). The final verdict was that the tax ruling between Dutch authorities and Starbucks was a form of illegal state aid (ibid). This led to the State Secretary giving some information about the tax ruling between the Dutch tax authorities and Starbucks to a small selection of MPs (Kamerstuk 31066 nr. 299, 2015).

In January 2014, the Algemene Rekenkamer, presented their report on tax evasion to the parliament (Kamerstuk 25087, nr. 78, 2014). Yet, this report did not really do much but repeat the statements made by the State Secretary: the tax rulings were in accordance with the Dutch laws, policies and, jurisprudence (idem: 5). Also, when asked about specific tax rulings, the report could not give any answer due to the secretive nature of most documents relevant to those tax rulings (ibid).

This appeal to secrecy and legality is also used by State Secretary Wiebes when discussing the tax ruling in a debate with MPs. There are multiple occasions were the State Secretary states that the tax rulings are in complete accordance with Dutch laws, policies, and jurisprudence, but is not allowed to give examples since the treaties are classified (Handelingen vergadernummer 60, 2015: 16). The only time MPs get a glance of the workings of these tax treaties, is when the State Secretary organizes a ‘technical briefing'. When this happens, a small selection of MPs gets a briefing on a specific tax treaty (Kamerstuk 31066 nr. 299, 2015). Despite critique from some MPs, the State Secretary wants to continue using these tax treaties in the same way they were used before (idem: 26). The reasoning behind this is that the treaties are completely legal and help strengthen the position of the business climate of the Netherlands (ibid). In accordance with this, the State Secretary states that the Dutch government supports the international efforts to push back tax evasion, but while doing this, wants to keep its inviting business climate (Kamerstuk 25087 nr. 131, 2016: 1). When asked about hybrid mismatches between the Netherlands and the US, which are used by American companies to evade taxes, he repeats that this should be countered without interfering with the favorable business climate the Netherlands have (Aanhangsel 383, 2016: 3). This strong focus on the Dutch business climate is in turn criticized by some MPs (Handelingen 82, 2017: 3).

What is remarkable, is that in the period analyzed, there is a shift from complete secrecy to more and more insight into the workings of the tax rulings. Due to repeated

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17 questions and inquiries by MPs, the State Secretary deemed it necessary to try and clear the mist around the practices of tax rulings, yet without going into specific cases (idem: 22). At the same time, the State Secretary suggests that these tax rulings are not used to make deals with tax authorities. He very clearly states that companies and the government do not negotiate on the amount of tax that will be paid, but that the government gives insight into the taxes a company has to pay if it would settle in the Netherlands (ibid).

The providing of certainty for companies is in itself an admirable aim. Yet, the mist that surrounds these tax treaties remains a problem. To effectively counter tax evasion, officials need clear insight into the fiscal structures used by companies. In the case of tax rulings, the only ones who have knowledge of the exact contents of the ruling are the tax authorities and the companies (Algemene wet inzake rijksbelasting, artikel 67.1; Algemene wet inzake rijksbelasting, artikel 67.3). The only certainty provided, is that the State Secretary assures that the tax officials are integer and have nothing to gain from making deals with companies (Handelingen 82, 2017: 37). Yet, the Procter & Gamble example shows that these kinds of treaties could be used by companies to get a tax cut for themselves (Kleinnijenhuis, 2017). Although this particular deal was not according to protocol, it took a whistleblower to expose this tax ruling to the public (ibid). This is the core of the problem. There is no possibility to control whether these rulings are correct, not by parliament, nor by media. This creates a situation in which parliament just have to trust tax authorities and the State Secretary. From a democratic point of view, this is clearly undesirable, but also from the point of view of countering tax evasion, this is undesirable. Since transparency is key in these financial matters, as stated by both the State Secretary and MPs (Handelingen 82, 2017: 31; Handelingen 82, 2017: 41; Kamerstuk 31066 nr. 326, 2017: 1).

Concluding this section, I would want to state that in the case of ‘sweetheart deals', there are two mutually reinforcing trade-offs: between confidentiality and transparency, and between an inviting business climate and anti-tax avoidance efforts. On one hand, the confidentiality from the Dutch tax authorities supports the business climate by creating a feeling of trust in the Dutch authorities. On the other hand, this confidentiality creates a lack of transparency, which in turn makes it harder to address the problem of tax avoidance. Thus, the availability of tax rulings could support the position of the Netherlands as a conduit-OFC, as supported by the example of Procter & Gamble (Keinnijenhuis, 2017). Yet, the secretive nature of those tax treaties makes it hard to identify malpractices.

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c. Tax Treaties

Tax treaties are another way in which the Dutch government tries to improve its business climate, something which is confirmed by State Secretary Weekers (Handelingen 53, 2013: 8; Kamerstuk 25087 nr. 34: 2). The idea of tax treaties, as mentioned before in the theoretical framework, is giving tax exemptions to prevent double taxation. This provides certainty for companies and stimulates foreign investment (Weyzig, 2012: 911). Although this is a very noble goal, one of the results is that these tax treaties are often used by companies to avoid taxes (Baker, 2013: 3; Kamerstuk 25087 nr. 60, 2013: 1). The treaty-network maintained by the Netherlands is large, and thus the risk of companies using it for tax avoidance is big (Weyzig, 2012: 914; Os & Knottnerus, 2011: 3). This risk is confirmed by State Secretary Weekers, yet he is confident that the regulations that are in place are enough to prevent tax evasion (Kamerstuk 25087 nr. 34, 2013: 6-7; Kamerstuk 25087 nr. 60, 2013:2).

Despite this confidence, there have been multiple reports of companies using the tax treaties to evade taxes (Kamerstuk 25087 nr. 48, 2013: 3). Especially when such treaties are made with developing countries, the risk of misuse is high, most notably because those countries are not equipped with the strong tax institutions that are necessary to prevent misuse (Weyzig, 2013: 912). Something which is also subject of multiple debates in Dutch parliament (Kamerstuk 25087 nr. 48, 2013; Kamerstuk 25087 nr. 84, 2015; Kamerstuk 25087 nr. 98, 2015). Especially the non-banking financial sector in the Netherlands seems to be playing a large role in the routing of profits and dividends from developing countries to the more developed ‘home countries’ (Kamerstuk 25087 nr. 60, 2013: 20). Again, the extensive network seems to play a large factor in the choice of companies to route investments via the Netherlands, besides strong institutions, and the tax rulings, discussed earlier (ibid).

In the tax treaties made with developing countries, the Netherlands rarely had any anti-abuse measures in those treaties, which naturally increases the risk of abuse of the treaties. The Dutch government stated that the prevention of abuse should be a collaboration between the tax authorities of both countries, but also acknowledges that the tax authorities in developing countries are rarely equipped to implement anti-abuse measures. Thus, the Dutch government tries to support the tax authorities in these developing countries (idem: 21).

Despite rumors of tax avoidance schemes that make use of the vast Dutch network of tax treaties, State Secretary Weekers argues that, while tax avoidance should be countered, this should not be at the expense of the Dutch business climate (Kamerstuk 25087 nr. 48, 2013: 13; Kamerstuk 25087 nr. 60, 2013:2). Another reason the State Secretary is reluctant to crack down hard on tax avoidance is the fact that the non-bank financial sector, tax advisors

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19 and such, creates a lot of jobs and money for the Dutch economy (Kamerstuk 25087 nr. 60, 2013: 3). The last reason the State Secretary is reluctant to take unilateral measures is that if the Netherlands would do that, the money flows would just go through different countries, leaving the Netherlands with empty hands and the situation unchanged (ibid). Yet, under mounting pressure from MPs, the Dutch government decided to take some unilateral measures to prevent tax malpractices. The treaties the government had with 23 developing economies were revised and was supplemented with anti-abuse measures (Kamerstuk 25087 nr. 82: 1).

An important pattern in Dutch policy on tax treaties is the commitment the Dutch government shows to the standards proposed by the OECD and the EC. On multiple occasions, government officials stressed the importance of those standards (Kamerstuk 25087 nr. 82; Kamerstuk 25087 nr. 102; Kamerstuk 25087 nr. 113). Yet, despite this strong commitment, the Dutch government is reluctant to lead the way, fearing that this would be devastating for the Dutch business climate (Handelingen 38, 2013: 13; Kamerstuk 25087 nr. 48: 25). The reason for this fear is the tax competition some European countries are having in creating the most favorable fiscal policies, in order to promote their business climate. The Dutch government sees the UK and Ireland as the most direct competitor with regard to the business climate (Handelingen 38, 2013: 19; Handelingen 98, 2016: 8). The Dutch government wants to maintain and expand their extensive tax treaty network, to keep ahead in the competition it is in with countries like the UK, Switzerland, Ireland, and Belgium (Kamerstuk 25087 nr. 130, 2016: 2). This reasoning also applies to the factors mentioned before, the innovation box and the tax rulings. Thus, to prevent overlap, this is where I want to end the analysis.

Concluding this section, I would like to summarize the Dutch stance on tax treaties. This stance is ambivalent: on the one hand, there are tax treaties which cause multinational corporations to place some activity in the Netherlands to make use of the extensive network of tax treaties. On the other hand, there is the significant risk of abuse of this network, which is mainly harmful to developing economies, who lose tax revenues, and even though the treaties incorporate some form of anti-abuse measures, the monitoring of those measures is in the hand of the not-so-capable tax authorities of developing countries, even though the Dutch government tries to support these tax authorities. Thus, the Dutch position on tax treaties seems to be ambiguous.

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V. Conclusion

After this analysis, it is time to answer the research question. The question was how Dutch tax law changed and how this influenced its position as a tax haven/ conduit-OFC. Before answering this, I am going to give a very short recap of the main points that arose from the analysis. The main point about the innovation box was that the dual function made it hard to investigate whether it was a positive instrument or whether it mainly contributed to tax evasion structures and was highly inefficient in promoting innovation. According to State Secretary Wiebes, the Dutch IB was in line with international standards and fulfilled its dual function of promoting both innovation and the Dutch business climate. Yet, there was critique from MPs and Oxfam Novib. The main point that arose while investigating the ‘sweetheart deals’ or tax rulings, was the inability to thoroughly investigate them, because of their secretive nature. Despite being in line with international standards, the tax rulings remained a question of trust in the tax authorities. Last, the tax treaties showed the ambivalent position the Dutch government occupied when dealing with tax evasion. It is reluctant to take unilateral measures to prevent tax evasion, because it fears to lose its favorable business climate, and thus waits for international organizations to take the lead.

Thus what do these three factors say about the position of the Netherlands as a tax-haven? What is clear, is that on an international level, the attention for the fiscal structures used by companies to evade taxes has been getting more attention. What is also clear, is that, according to the analyzed parliamentary documents, the Netherlands strongly support these international efforts. Both the IB and the tax rulings were brought in accordance with international standards during the period investigated. If again, we would look at the indicators from the EC Tax Report, it would be clear that the position of the Netherlands changed for the better. However, despite stating this strong support and these positive developments, the Dutch government is reluctant to take strong unilateral action to counter tax evasion in the Netherlands, because it is afraid to damage the favorable business climate it created.

Thus, to answer the research question, how did changes in the Dutch tax laws in the period 2012-2017 influence the position of the Netherlands as a tax haven, two things need to be mentioned. On the one hand, the Dutch government repeatedly stated support for international efforts to stop tax evasion and integrated international standards into its own tax laws. This trend shows that the Dutch government wants to alter its position of an alleged tax haven. On the other hand, the Dutch government showed reluctance to unilaterally implement

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21 policies that would counter tax evasion. The reason behind this is the fear of losing its favorable business climate and losing the ‘fiscal competition’ to countries like the UK and Ireland. A recent example of this ‘fiscal competition’ is the abolishment of the dividend tax (nos.nl, 2017). This policy change was implemented to attract more foreign companies, competing with mostly the UK and the US (Meinema, 2017). Thus the fear of losing its favorable business climate, causes the Netherlands to persevere in the image of a tax haven.

These two factors could be summarized as a trade-off, a trade-off between, on the one hand, cracking down on tax malpractices, and, on the other hand, maintaining a favorable business climate. In the period 2012-2017, the Dutch government performed a balancing act and tried to satisfy both international organizations and multinational companies. Hence, it is hard to really give a conclusive answer to my research question, because the answer would be: kind of both.

The last thing I want to do is to address some of the shortcomings in this research and, proposing some further venues for future research. I start with the shortcomings. There are several shortcomings, but here, I am just going to mention the most prominent ones. The first shortcoming is the selection of my data. I chose to look at parliamentary documents. This resulted in something which you could call a discourse analysis. There is nothing wrong with a discourse analysis, but the difficulty lies in the fact that the State Secretary saying ‘we do not support tax evasion' and the actions he takes, could be different. Besides, the effectiveness of the measures taken is unknown to me, so suggesting they would completely prevent tax evasion, is a false claim. A second shortcoming is the limited amount of data analyzed. There are hundreds of documents about tax laws and tax evasion. Yet, due to the limited amount of time and the limited scope of this paper, I was not able to analyze all these documents, but just a selection. Future research could look into the possibility of analyzing a larger selection of documents over a longer period. Another venue for future research could be to investigate the viewpoint of multinational corporations, or tax advisers, have on the developments in corporate taxes in the recent period. These are just two suggestions, and there are way more possibilities, but for now, I will limit myself to these two.

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