Settling after the crisis - Phase 1

General

Informing stakeholders about government support

Because the wage subsidy issued under the Temporary Emergency Bridging Measure to Preserve Employment (NOW) relies heavily on public funds, transparency regarding how these funds are spent is hugely important. For that reason the advances granted and the set subsidy amounts per applicant are published on the website of the Employee Insurance Agency (UWV). As an applicant you should be aware of this and first assess properly whether you need a wage subsidy. You should also think about communication strategy with stakeholders and possibly the general public. After the crisis this may become an important factor in terms of making your organisation future-proof.

Identifying obligations for government support

A number of the government's emergency measures are accompanied by additional compliance obligations. Having a modern fiscal control system will help in this respect. Dashboarding is a simple method you can use to make your current fiscal and financial information transparent, for example with regard to turnover figures, the ending of the requested deferment and your liquidity forecast. The improved insight will enable you to initiate necessary actions more quickly in order to fulfil the various expectations and obligations. This is also a valuable addition with an eye on the future.

Special deferment of payment of tax (BUVB)

The special tax deferral (BUVB) scheme - which had initially ended on 1 October 2021 - has been extended until 31 March 2022 for entrepreneurs who still have unresolved debts under the BUVB due to the corona crisis. Entrepreneurs who have already been granted BUVB do not need to take any action, the current tax deferral will automatically continue until that date. It applies to all taxes that were eligible for deferral under the BUVB and for which the payment deadline expires before 1 April 2022. These debts are added to the tax debt that must be paid off in 60 months starting 1 October 2022. Entrepreneurs who have not previously requested a tax deferral or paid the tax debt that has now been deferred can also take advantage of this deferral. Please note that if you have been granted a special deferment of more than three months, a third-party expert's opinion must be provided. In addition, no bonuses must be paid to the company's Executive Board and management, no dividends must be paid and no shares must be repurchased or repaid in the period from the date of filing the deferment request until the withdrawal or lapse of the deferral granted.

It is also important that the payment arrangement can be revoked "if the interests of the State oppose the payment arrangement". This may be the case if the payment of bonuses and dividends or the repurchase of shares jeopardises compliance with the payment scheme.

Entrepreneurs will have more flexibility in repaying their tax debt as of 1 October 2022. They may repay the monthly amounts quarterly or make use of a one-time payment break of six months maximum within the existing payment scheme. Entrepreneurs must submit a written request for this, which shows the repayment problems. In addition, the condition is that entrepreneurs have fulfilled regular payment obligations, such as monthly sales tax and payroll taxes payments, as of April 1 2022.

In addition, for a specific group of companies the possibility exists to request an extension of the payback period for the BUVB debt from five to seven years. Viable companies with a (corona) tax debt of 10.000 euros or more, which are currently in bad financial shape and for which the five-year payback period is too short, are eligible for the extension. These companies have to submit a motivated request for extension in which the necessity and feasibility of the extension are demonstrated. Companies with a debt of 50.000 euros or more must also submit a statement from an expert third party.

The application for the wage subsidy NOW has in many cases led to a ban on the payment of bonuses and dividends and the purchase of own shares. The dividend ban and the ban on repurchasing own shares also applies in some cases to affiliated entities and may have an effect beyond our national borders.

Unblocking and accessing blocked accounts

Contractors or companies that post, hire out or second staff and use blocked accounts can ask the tax authorities to have these accounts unblocked. Due to the coronavirus crisis, amounts can be temporarily released - in addition to the so-called surplus in the blocked account - which have been reserved for additional tax assessments which have already been imposed for payroll tax or VAT. In connection with those assessments you must, however, first apply for a special deferment of payment due to the coronavirus crisis.

The extended unblocking possibility then applies to amounts for which you have obtained a special deferment, or for which the tax authorities have suspended the collection in connection with a special deferment of payment. The unblocking will not be accompanied by any settlement against other debts for which special deferment has been granted, or for which the collection has been suspended in connection with a special deferment of payment. The tax collector will not be able to access the blocked account (use its right of pledge) unless the interests of the State determine otherwise.

The relaxed policy on unblocking is related to the special postponement of payment due to the corona crisis. Therefore, the relaxed policy regarding the blocked account effectively applies until October 1, 2021.

Frans Cremers

Partner, Amsterdam, PwC Netherlands

+31 (0)61 393 45 87

Email

Marvin de Ridder

Director, Rotterdam, PwC Netherlands

+31 (0)63 987 29 84

Email

Personnel & HR

Conditions NOW-6

NOW-6 will be introduced in January 2022 up to March 2022. On 21 December 2021, in connection with the new COVID-19 measures, the compensation for the maximum wage bill for NOW-6 was increased to 90 per cent. Communication regarding the specific conditions of NOW-6 is expected on January 6. At this moment however, the conditions appear to be nearly the same as for NOW-5, being:

  • Maximum loss of turnover: 90%
  • Minimum loss of turnover: 20%
  • Maximum compensation wage bill: 85%
  • Wage bill exemption: 15%. 
  • Flat-rate surcharge: 30%. 
  • Maximum compensation per employee: twice the maximum daily wage.
  • Wage bill reference: October 2021.

As of January  the (definition of) the wage bill, as used by UWV, has changed. In the wage bill more costs have been included as for example the holiday allowance. Therefore, the flat-rate surcharge has been put on 30%.

It was announced in earlier communication that the Cabinet is exploring the possibility of introducing an (annual) turnover loss threshold. In any case, the possible (annual) turnover loss threshold for the NOW will not be introduced for the NOW-6 in the first quarter of 2022.

Conditions NOW-5

NOW-5 has been introduced retrospectively and covers November and December 2021. NOW-5 has largely the same conditions as NOW-4. On 21 December 2021, in connection with the new measures, the maximum loss of turnover for NOW-5 was retroactively increased to 90 per cent. The allocation will be settled in the final subsidy determination.

  • Maximum loss of turnover: 90%
  • Minimum loss of turnover: 20%
  • Wage bill exemption increases to: 15%.
  • Flat-rate surcharge: 40%.
  • Maximum compensation per employee: twice the maximum daily wage.

For NOW-5 the wage bill of September 2021 is the reference. Starting entrepreneurs who have started no later than 30 September 2021 can apply for NOW-5. Unlike the previous NOW schemes, in applying for NOW-5, employers can no longer choose over which months they wish to have the loss of turnover calculated. For each employer the loss of turnover is calculated over the months of November and December 2021.

Conditions NOW-4

NOW-4 covers the period July up to and including September 2021 and is the last period for which NOW can be applied for. The figures for NOW-4 are equal to the adjusted figures for the second and third period of NOW-3 (January to March 2021 and April to June 2021): 

  • Maximum compensation wage bill: 85%.
  • Minimum loss of turnover: 20%.
  • Wage bill exemption: 10%.
  • Flat-rate surcharge: 40%.
  • Maximum compensation per employee: twice the maximum daily wage.

For NOW-4 a new reference month for the wage sum has been chosen, the month of February 2021, instead of June 2020. In addition, a turnover limit has been introduced whereby a turnover loss of up to 80 percent is used for the calculation. This means that if you have a loss of turnover of 80 to 100 percent, the calculation will be based on 80 percent. So this change means that a company with a turnover loss of 100 per cent will receive a subsidy for 68 per cent (80% x 85%) of its wage costs. For companies with a loss of turnover of 80 per cent or less, nothing changes due to the introduction of the turnover limit.

Conditions NOW-3

On 1 October 2020, the first period of NOW-3 started. The NOW-3 is divided into three subsidy periods of three months each. Similar conditions apply per subsidy period, see table below. Contrary to what was first established, the NOW-3 will not be phased out in later periods.

NOW 3

period

loss of turnover

max. wag bill

drop wage bill

max. per employee

1 Oct. t/m 31 Dec. 2020

20%

80%

10%

€ 9.691

1 Jan. t/m 31 March 2021

20%

85%

10%

€ 9.718

1 Apr. t/m 30 juni 2021

20%

85%

10%

€ 9.718

The application period for the second period of NOW-3 is from 15 February to 14 March 2021. The application period for the third period is from 17 May to 13 June 2021.

TVL subsidy no longer counts as turnover for NOW-3 , NOW-4 and NOW-5

The Government has chosen to exclude the TVL subsidy from the scope of the turnover for NOW-3, NOW-4 and NOW-5. Employers who have applied or are applying for NOW-3 , NOW-4 and NOW-5 will therefore no longer need to take account of the TVL subsidy received when determining their NOW subsidy.

We note that the TVL, as was applicable in the fourth quarter of 2021, has been extended for the period of January - March 2022. In addition, due to the acute lockdown on 19 December 2021, the TVL turnover loss threshold has been lowered from 30 to 20 per cent for the fourth quarter of 2021 only.

Reduction in working hours

On 30 August 2021, the Cabinet announced that the support package for jobs and the economy would end on 1 October 2021.Due to the termination of the NOW as of 1 October 2021, the Working Time Reduction regulation will come into force again as of that date. As a consequence, you will again be able to apply for a reduction of working hours for your employees. Despite the introduction of NOW-5, the Working time Reduction regulation (WTR) remains open. The WTR does not continue to apply to corona-related cases. An employer who faces other special circumstances may be eligible for both schemes. However, the unemployment benefit that an employer receives for the employee as a result of the WTR application will, in order to avoid undesirable double financing, be regarded as turnover for the NOW-5. In those cases, the employer's WTR application will therefore affect the amount of the NOW.

Processing the NOW applications

Following an application for a NOW advance to the UWV, you must submit a request for NOW to be determined after the subsidy period has ended. You can submit this request for the first NOW period from 7 October 2020 until 31 October 2021. Requests for the determination of NOW-2 can be submitted from 14 March 2021 until 31 March 2022. 

For NOW-3 the following applies. The application desk for the determination of NOW 3.1 (subsidy for October until December 2020) is open from 4 October 2021 until 22 February 2023. Applications for the determination of NOW 3.2 en NOW 3.3 (subsidy for January until March 2021 en April until June 2021) can be submitted from 31 January 2022 until 22 February  2023.

The following matters are important for the phase following an application for an advance:

  • If it is clear that you no longer fulfil the requirements for the subsidy to be granted, for example if you do not - after all - experience the expected loss of turnover, you must report this as quickly as possible to the UWV.
  • If your advance payment exceeds 100,000 euros, or the eventual subsidy amount exceeds 125,000 euros, your request must be accompanied by an auditor's report. The government will make an online tool available to estimate whether your subsidy is going to exceed 125,000 euros (if your advance was lower than 100,000). For this estimate it is, in any event, important that the advance amounts to eighty per cent and the eventual subsidy is reduced if the average wage bill in the subsidy period is lower than three times the wage bill of the so-called reference month).
  • If no auditor's report is required, requests for NOW to be determined will be subject to random checks. With this in mind it is important that you keep accurate records of your turnover and wage bill.
  • In the event of a request based on an advance which exceeds 20,000 euros, or if the NOW amount exceeds 25,000 euros, you must submit a statement from a third party which confirms the drop in turnover.
  • If the final determination of NOW shows that an entrepreneur received too much advance on the subsidy, this amount must be repaid to the UWV. After the determination each entrepreneur is given a standard six weeks to repay the outstanding amount.
  • Should this not be possible for any reason, an entrepreneur can make arrangements to repay in several instalments. The applicable interest rate is zero per cent and there is a concession that the UWV will be accommodating in this respect. The Cabinet has also decided to use an efficiency limit for repayments of NOW (and TVL), whereby amounts under 500 euro will not be collected.

Preparations for the 1.5 metre society

Employers are advised to start drawing up policy soon for a return to work (coronavirus protocol). Employers must inform their employees about this protocol and about the measures to prepare for the 1.5 metre economy in good time. The measures which companies have to implement differ per sector depending on the circumstances of the case.

Coronavirus protocol

The coronavirus protocol must, in any event, contain the following aspects:

  • Based on your workforce you have to determine which employees are able to return to work (in phases) in a way which does not discriminate.
  • You will have to adapt the working environment (such as desks and the canteen) in a way which complies with the 1.5 metre rule.
  • You must observe the hygiene protocol of the National Institute for Public Health and the Environment (RIVM) and make employees aware of its existence. Disinfectants must be made available for use upon arrival and at workstations.

You can read more about the new way of working here.

International social security

During the COVID-19 crisis the social security authorities in most EU countries announced a more relaxed policy for international employees who live and work in the EU, the EEA or Switzerland. Their position will not change if they are required to work from home temporarily due to the coronavirus measures (see this PwC Tax News article) for more information.

It is important for employers that they properly monitor when these relaxed measures end and whether their employees can at that time actually travel to the locations they are expected to travel to.

Taxation of cross-border workers: mutual agreements with Belgium and Germany

The Netherlands has made agreements with Belgium and Germany about the taxation of cross-border workers who work in their country of residence due to the coronavirus measures. The mutual agreements with Belgium and Germany have been extended until 30 June 2022. The Netherlands has agreed with Belgium and Germany that this has been the final extension, meaning that the final end date of the agreements is 1 July 2022. On the basis of these agreements employees can, when drawing up their personal income tax return in the Netherlands and Belgium or Germany, choose (up to and including 30 June 2022) whether they wish to allocate the days they work from home to the tax levy of their usual country of work, or to their country of residence where they actually worked. In order to ensure that a sensible choice is made, it is advisable to assist your employees with this and make agreements with them about any tax advantage. See also under International/cross-border employment.

Remuneration and personal policy

The COVID-19 crisis is having an effect on pay packages. Depending on your type of company you must, for example, evaluate and amend the allocation of performance shares, participation plans and incentive payments. As regards the broader personnel policy, the question is where and how you want to start using your talented and key employees. A reorganisation of some kind may be necessary in order to create the required flexibility. As regards all these matters it is essential to draw up a communications strategy and plan for employees and other stakeholders. You can read more here about the effect of the crisis on Personnel & HR.

Pension

The possibility to suspend, on a short term, the payment of pension contributions depends on the agreed payment terms and on the collection policy of your pension provider. Many pension providers have responded to the call for leniency when entering into payment arrangements for acute liquidity problems. Read more about the general (statutory) preconditions for premium payment and premium arrears on Measures against the impact of the coronavirus. Here, you can also read more about possible options for a payment retention or unilateral changes to the pension agreement.

Nicolien Borggreve

Partner, Amsterdam, PwC Netherlands

+31 (0)62 081 66 41

Email

Daniël Sternfeld

Partner, Rotterdam, PwC Netherlands

+31 (0)61 089 28 89

Email

VAT & Customs

VAT

Interim reconciliation of annual accounts and the VAT returns

A review is needed, of all coronavirus-related cash flows received in 2020 and to be received in 2021 and 2022, to see whether these amounts might be subject to VAT and in which period of time. You must provide reasons to the tax authorities as to why these (new) incoming cash flows are not relevant for VAT and document this. You may have to account for incoming cash flows like these as turnover or expense allowances and as such you will have to analyse any differences with VAT turnover and costs. It is also advisable for you, as an entrepreneur required to pay VAT, to make an (interim) reconciliation between the annual accounts and the VAT returns.

Examples of VAT-relevant incoming cash flows

You will have to check whether incoming coronavirus cash flows are liable to VAT on a case-by-case basis. This means, for example:

  • Direct subsidies (such as wage subsidies for employees and stock), gifts, sponsorship income.
  • Advances to be repaid.
  • Coronavirus-related support for research, specific infrastructure, the building and improvement of (test) facilities, production, digital applications and the hiring of external staff.
  • Payments for the provision of care staff.
  • Compensation, for example of contracting parties.
  • Third-party claims paid out (for example payments for unlawful actions).
  • Vouchers (for single or multiple use).
  • Availability and continuity contributions (from the government aimed at, for example, public transport, care).
  •  Voluntary consumer contributions.

Benefits or allowances rightly obtained under one or more of the following schemes are not taxed for VAT purposes according to the tax authorities. They also have no consequences for the possible deduction of input tax:

  • The wage subsidy (NOW).
  • Temporary bridging arrangement for flexible workers (TOFA).
  • Compensation for Entrepreneurs in Affected Sectors (TOGS)
  • Fixed costs allowance (TVL)
  • Subsidy for fixed costs of MKB-companies
  • Contribution to Sports Facilities Landlords COVID-19 (TVS).
  • Temporary Support Scheme for Self-Employed Persons (Tozo)
  • Temporary Support Necessary Costs (TONK).
Accounting VAT check in conjunction with special price discounts

In the case of special price discounts, as a consequence of the coronavirus crisis, it is also advisable, to carry out checks at bookkeeping level and to check the completeness, accuracy and timeliness of all positive and negative entries on the 'receivable and payable VAT' ledger accounts.

Working from home and business-to-private-use ratio

In connection with changed circumstances as regards the business-to-private-use ratio, the amount of VAT deduction or VAT adjustment may have been changed. This may have consequences for your (annual) VAT return. In the event of higher business use, you may receive a larger VAT refund.

Deduction of VAT input tax in the case of costs paid directly by a third party

If costs are reimbursed, this will be regarded as an incoming cash flow. However, it may also be the case that a third party pays costs directly, or that you pay another party's costs directly. In order to process and deduct VAT correctly, you must assess whether the VAT invoice is correct and has been issued to the right party. For the deduction of VAT, this is the purchaser/recipient that uses the costs for its taxed activities.

The conversion of supplier credit into a loan

When converting supplier credit into a loan, you must assess the VAT consequences. If a receivable from a purchase agreement (supplier credit) is converted into a receivable from a loan (novation), the original receivable will have, in fact, been paid. Often, the supplier will no longer be able to submit a request for a VAT refund if the loan is not repaid.

Termination of VAT payment deferment

You may be able to agree to a tailor-made solution with the tax authorities when you come to the end of the special deferment of tax payment scheme. You must weigh up the advantages and disadvantages.

Customs

Cash recovery

You may still be able to arrange a possible refund of customs duties, for example in conjunction with the retrospective lowering of import duties in connection with the coronavirus crisis.

Termination of payment deferment

You may be able to agree a tailor-made solution with the customs authorities when you come to the end of the special deferment of tax payment scheme. You must weigh up the advantages and disadvantages. Aa tailor-made solution is also important for your status as AEO (Authorized Economic Operator) that must, after all, meet solvency requirements in the EU.

Data analysis

Short-term emergency solutions in order to deal with problems relating to the flow of goods may have had an effect on customs parameters (such as origin, rate and value). Customs data needs to be analysed in order to determine whether everything has gone well and this may even create possibilities in the form of, for example, a refund of customs duties paid.

Claudia Buysing Damsté

Partner, Rotterdam, PwC Netherlands

+31 (0)65 103 04 63

Email

Jochem Kijftenbelt

Partner, Amsterdam, PwC Netherlands

+31 (0)64 801 92 27

Email

Profits tax

Profit and the redemption of vouchers

It may be that you cancelled events or meetings during one of the lockdowns and issued customers with vouchers as a form of compensation. When should you record these as profit? At the latest, they should be recorded as profit at the moment that the service is provided. Often this will be the moment at which the voucher is redeemed. Until that moment a liability will be recorded on the balance sheet for services still to be rendered. Depending on the conditions under which the vouchers are issued, this will take the form of a provision or a debt. The latter is relevant when determining the value of the liability in question.

Tax free: gift of four thousand euros and Fixed costs allowance (TVL)

The one-time gift of four thousand euros on the basis of the Compensation for Entrepreneurs in Affected Sectors (TOGS) and the Fixed costs allowance (TVL) of a maximum of 90,000 euros are free from corporate and personal income tax. This includes the stock subsidy for the closed retail trade as it is also provided through the TVL. Incidentally, the maximum TVL has been increased to 550,000 euro for Self-employed and SMEs (up to 250 employees) starting from the first quarter of 2021 and for non-SMEs (more than 250 employees) set at 600,000 euro. For non-SMEs, this ceiling was temporarily raised to EUR 1.2 million in the second quarter of 2021 and then lowered again to EUR 600,000. Consequently you do not have to include these amounts in your personal or corporate income tax returns. The government has announced that the One-off storage for stock and adaptation costs in the catering sector and the closed retail sector will also be exempt from personal and corporate income tax. The COVID-19 Fixed Charge Funding Grant Scheme will expire after the first quarter of 2022.

After the final NOW/TVL subsidy amount for the period to which it relates has been established, every entrepreneur is given a standard six-week term to repay any excess subsidy received. Should this not be possible for whatever reason, then an entrepreneur can make arrangements to repay the excess in several installments.

Personal income tax

Relaxation of hours criterion

As an independent entrepreneur, or as a participant in a general partnership (VOF) or a limited partnership (CV), you must fulfil the hours criterion to qualify for certain deductibles (such as the tax allowance for self-employed persons, the co-working partner's relief and the old-age reserve). This means that you spent at least 1,225 hours per calendar year on work for the business. However, for the 2020 personal income tax return you are allowed to include 24 hours per week for the period from 1 March 2020 up to and including 30 September 2020 even if, in reality, you did not spend that number of hours on work for your business. In the event of partial incapacity for work, an hours criterion of eight hundred hours will apply. The relaxation of hours criterion also applies to the year 2021. In the period from 1 January 2021 to 30 June 2021, 24 hours per week can be taken into account, just as in 2020 (and at least 16 hours per week for the starter's deduction in the event of incapacity for work). This will not be extended further; from 1 July 2021 onwards, only the hours actually worked will count towards the hours criterion.

Relaxation of hours criterion for seasonal workers

Seasonal workers for whom the peak in activities is normally during the period from 1 March up to and including 30 September are allowed to use the hours they worked in the same period in 2019 for 2020. For 2021, this scheme also applies to seasonal workers for whom the peak period falls between 1 January 2021 and 30 June 2021. For these workers, the same period in 2019 can be used as a comparative measure

Corporate income tax

Ban on the profit distribution in conjunction with NOW and deferment of payment

If a Dutch (group) entity has applied for the Temporary Emergency Bridging Measure to Preserve Employment (NOW) or an extended deferment of payment, restrictions apply with respect to the payment of dividends and/or bonuses and the purchase of the company shares

The effect of the restriction on repurchasing own shares, payments of dividends and bonuses for the NOW depends on the period for which NOW has been applied for. A broader restriction also applies if NOW is applied for by an independent operating company (based on the company's own loss of turnover instead of the loss of turnover at group level).

For purposes of the extended deferment of payment, the restrictions apply for the entire period as from the request for the deferment up to and including the (shareholders') meeting in 2021 during which the 2020 financial statements will be adopted. Furthermore, these restrictions only apply to the company requesting the deferment. In some cases these restrictions only apply if an auditor's report is required. Any violation of this ban in conjunction with, for example, the NOW scheme can result in the wage subsidy being set to zero and with that a refund of the wage subsidy received. All the decisions taken in relation to dividend and bonus payments over 2019 can, however, be implemented. See also: Informing stakeholders about government support under ‘Fase 1/General~.

Corona tax reserve 2019

Under certain conditions you are already allowed to deduct the expected loss during 2020 in 2019, insofar as that is related to the coronavirus crisis. This can be used to create a so-called corona tax reserve. This reserve must not amount to more than the 2019 profit. You are obliged to include the corona tax reserve in the profit of financial year 2020.

Fiscal provisions

When preparing the corporate income tax return for the 2020 financial year, you can include a provision based on the ordinary rules for calculating taxable profit (good business practice) for expenditure that is or will be incurred in 2021 or later years, but whose origin is in 2020. Under certain circumstances, expenses may be provided for e.g. a redundancy scheme in 2021, related to staff reductions due to the corona crisis, which have already been decided in 2020.

Also for the fiscal book years 2021 and 2022, it may be considered to what extent the provisioning of business decisions is permissible because of Covid-19.

Determining the loss of turnover for the NOW scheme

When determining the loss in your turnover, did you take account of the application of your (regular) transfer pricing policy and include the relevant intercompany turnover? In principle, the transfer price method ought to be consistent before, during and after the COVID-19 crisis/NOW period. If you are receiving a NOW subsidy, you should make sure that you take account of how this affects your transfer prices and with that the operational and fiscal result for the activities in question.

Noor Sanders

Partner, Amsterdam, PwC Netherlands

+31 (0)65 389 65 39

Email

Philip Vossenberg

Tax Partner en Regioleider regio NOC, Amsterdam, PwC Netherlands

+31 (0)62 295 34 75

Email

Financing

Repayment of funds

If you have used the Dutch government's support measures, it may be that you have to fulfil certain obligations. A loan obtained via the The entrepreneur finance guarantee (GO scheme), for example, has to be repaid in accordance with the agreement. Alternatively, you have to demonstrate in retrospect that you fulfilled the criteria for the support measure used.

In order to be properly prepared, it is important to embed these agreements and obligations in your organisation. You should therefore check properly which administrative and financial obligations you entered into when you used a support measure and when your organisation is expected to respond. This will avoid problems for you in the long term and enable you to make a well-considered schedule for how you can steer your organisation through and out of the COVID-19 crisis.

Allard Knook

Partner, PwC Netherlands

+31 (0)63 437 77 85

Email

Ivo Verheijden

Senior Director, Amsterdam, PwC Netherlands

+31 (0)65 181 78 08

Email

Governance

Granting of discharge in uncertain times

Directors who fail to perform their duties properly may - in case of serious culpability - face a claim by the company to compensate the damage caused (internal liability). When the board has been granted discharge by the general meeting, the board is indemnified against this internal liability. In principle, the board members can then no longer be held liable by the company for the policy they have pursued. Please note that the granting of discharge only covers internal liability and does not help a board member if a third party sues the board member (external liability).  

Discharge is often granted annually to the board on the basis of the annual accounts. In that case, the discharge is limited to the year to which the annual accounts relate, the content of the annual accounts and the items discussed in the general meeting. It is also possible to grant interim discharge, for example to cover a crisis period. If an (interim) discharge is not based on annual accounts, the scope of the discharge is determined by the contents of the resolution to grant discharge.

In these uncertain times, it is important to choose the wording of a resolution to grant discharge with care.   

The temporary law COVID-19 (Tijdelijke wet COVID-19 Justitie en Veiligheid) provides options that may also be of interest to the general meeting.Therefore also make sure this resolution is correctly adopted by the generalmeeting. Directors are at greater risk of liability if a (legally valid) discharge has not been granted. 

Dividend and bonus policy and purchase of own shares under NOW scheme and Special deferment of payment of tax (BUVB)

Directors should be aware of the dividend and bonus policy and purchase of own shares, including the prohibition thereof, that apply under the NOW scheme and the BUVB for more than three months. For the NOW impact, please see also Measures to mitigate the impact of coronavirus - NOW regulation.

Ronald Lantman

Director, Amsterdam, PwC Netherlands

+31 (0)65 390 89 98

Email

Claudine Maeijer

Partner, Amsterdam, PwC Netherlands

+31 (0)65 324 37 89

Email

Contracts

Meeting obligations from your existing contracts

Are you still able to meet your obligations under your contracts? If you are unable to meet the obligations at all, first check whether the contract contains a force majeure clause and whether it can be invoked. If you can still fulfil the (obligations under the) contract but cannot reasonably be expected to fulfil it unaltered, you can try to amend or dissolve the contract (in whole or in part) by invoking unforeseen circumstances.

Mark van Wouwe

Director Legal, PwC Netherlands

+31 (0)61 359 35 89

Email

Ivo Verheijden

Senior Director, Amsterdam, PwC Netherlands

+31 (0)65 181 78 08

Email

International

Crisis measures abroad

Across the globe governments are taking support measures in connection with the coronavirus crisis. These may apply to your industry or sector. See here for an overview of the International (fiscal) support measures.

Companies' place of business

Companies are considered to be established at the location at which the directors actually manage them. Due to the travel restrictions as a consequence of the coronavirus measures it may be the case that directors are temporarily managing the company from a different country. If this is permanent, it may result in the company's place of business - and with that the place at which that company's profit is taxed - shifting to a different country.

Permanent establishment risks

In many cases the COVID-19 crisis means that employers have asked employees to work from home. Sometimes the employee's country of residence is a different country to the country in which the employer has its place of business and in which the activities usually take place. The question is whether this situation can lead to the permanent establishment of the employer in the employee's country of residence, with the consequence being non-compliance with the rules and sometimes even double taxation. Usually this is not the case because there is no long-term element. However, the expectation is that, in many cases, working from home is (partially) going to become the 'new normal'. This increases the risk of the employer having a permanent establishment in the employee's country. Because this differs per country and type of tax, it would be good for you as an employer to assess these risks.

Cross-border employment

In practice it may be the case that employees live in one country but work in another. Tax treaties divide the authority to levy between the country of residence and the country of employment. It is not yet known what the 'new way of working' is going to look like after the coronavirus crisis. Employers that are considering offering employees the possibility of working from home on a more structural basis must take account of the fact that this can affect the tax and social security position of international employees, as well as the treaties preventing double taxation which mean that the authority to levy may shift from the country of employment to the country of residence and vice versa. Because this differs per country and type of tax, it would be good for you as an employer to assess the effects and compliance obligations. The mutual agreements with Belgium and Germany for the taxation of international employees have been extended up to and including 30 June 2022.

Regina van der Kuip

Partner, Amsterdam, PwC Netherlands

+31 (0)65 126 62 62

Email

Family businesses

NOW and BUVB application in combination with a ban on dividend payments

If your (family) business uses or has used the Temporary Emergency Bridging Measure to Preserve Employment (NOW) or the Special deferment of payment of tax (BUVB), it is regarded as socially unacceptable to make dividend and bonus payments as usual. Depending on whether one or more operating company/companies within a group have individually applied for NOW or BUVB and for what period they applied for, the group head could also need to to declare that no dividend and bonus payments will be made. Please see for the NOW impact also Measures to mitigate the impact of coronavirus - NOW regulation.

The NOW and essential dividend payments

If agreements exist for which dividend payments are necessary, NOW and BUVB may have complicating consequences for director major shareholders, for example in terms of paying off a (current account) debt to your company. A dividend and bonus prohibition may apply, depending on when NOW has been applied for and whether there is a group of companies within which an independent operating company has applied for NOW, see also above. For BUVB, it is important whether it was the standard three-month postponement or more than three months. Independently of a possible prohibition on dividends and bonuses a careful consideration is required of the need and necessity of a dividend payment. Your considerations should also take account of the social perspective and your fiscal (company) strategy.

Continuity requirement of business succession scheme (BOR) and valuation of the business

If (part of) a company is gifted to a successor and the business succession scheme (BOR) is used, the acquirer is required to continue the company in its entirety for at least five years under the so-called continuity requirement. If you were gifted (part of) your current company less than five years ago under application of the BOR and you are forced by the coronavirus crisis to terminate part or all of the business, this may be in contradiction of the continuity requirement. It is important to discuss this on time with the tax authorities.

Extension of customary pay in the event of a decrease in turnover

As a director and majority shareholder you are expected to receive at least a ‘customary pay ’ from your company. If your company had a lower turnover during the first four months of 2020 due to the coronavirus crisis and you (temporarily) lowered your salary, you may be eligible for a lower customary pay for 2020. The permitted lowering of the customary pay is proportional to the decrease in turnover in the first four months of 2020 compared to the first four months of 2019. One of the conditions was that your current account debt and paid dividend over 2020 does not increase as a consequence of the lower customary pay.

Also for 2021, it will be allowed to take a lower customary wage into account in case of a decrease in turnover. In the regulation for 2021, the turnover for the entire year 2021 will be compared to the turnover for the entire year 2019. There must be a loss of turnover compared to 2019 of at least 30 percent. The other conditions, such as those regarding your current account and the dividend to be paid out, are similar to the 2020 scheme.

Lease of real estate to your family business

If you lease real estate to your family business, you may opt for a (temporary) reduction in the rent for business reasons.

Niels Govers

Partner Family Business, PwC Netherlands

+31 (0)62 906 82 17

Email

Philip Vossenberg

Tax Partner en Regioleider regio NOC, Amsterdam, PwC Netherlands

+31 (0)62 295 34 75

Email

Follow us

Contact us

Nicolien Borggreve

Nicolien Borggreve

Partner, PwC Netherlands

Tel: +31 (0)62 081 66 41

Allard Knook

Allard Knook

Partner, PwC Netherlands

Tel: +31 (0)63 437 77 85

Philip Vossenberg

Philip Vossenberg

Tax Partner en Regioleider regio NOC, PwC Netherlands

Tel: +31 (0)62 295 34 75

Hide