Private Foundation

January 26, 2010 5:46 AM

By Xandra Kleine-van Dijk, Tax Adviser Spigthoff Curacao

General aspects of the Private Foundation

The Netherlands Antilles exists of 5 islands, being Curacao, Bonaire, St. Maarten, Saba and St. Eustatius. The Netherlands Antilles Private Foundation (hereinafter referred to as: ‘PF’) has been introduced in the Netherlands Antilles Law through the National Ordinance Regarding Foundations as published on October 31, 1998. Since March 1st, 2004, these rules are laid down in Book 2 of the Civil Code.

The PF possesses corporate personality but does not have a share capital. The PF is incorporated by deed executed before a Netherlands Antilles public notary and is registered in the Register of Foundations at the Chamber of Commerce. It is not possible to found a PF by changing e.g. the Articles of Incorporation of a ‘regular’ foundation. The Articles of Incorporation of the PF includes the name of the PF and the word PF as a part of the name, the object of the foundation, the appointment and dismissal of the members of the board, the island where the PF has its seat and the destination of the remainder in case of dissolution of the PF.

The Articles of Incorporation of the PF can only be changed by its organization in case this is regulated in its articles.

The object of the PF may include a number of activities, and is therefore not limited to a charitable purpose, provided however that the PF does not engage in a real business or run an enterprise for profit. As laid down in Book 2 of the Civil Code, the PF does not run an enterprise if it is engaged in investment activities or holding activities (to certain limits) or operating as a silent partner in a limited partnership.

In addition, the object of the PF, as laid down in its Articles of Incorporation, may include in general or specific terms the making of distributions to the founder(s) and/or others.

The possibility to distribute gifts is the board’s own prerogative; therefore, the indicated beneficiaries do not derive any claim against the PF, neither individually nor as a class.

If so desired, the Articles of Incorporation may provide that authority of the board to make distributions is subject to the consent of the founder or supervisory director(s).

Netherlands Antilles taxation

Profit Tax

The PF is exempt (objective) from Netherlands Antilles profit tax provided that the PF does not conduct a ‘real’ business (or run an enterprise for profit). The profit tax law does not contain a definition of conducting a real business. Therefore jurisprudence must give guidance. In jurisprudence one finds the following definition (cumulative conditions):

in case there is an organization of capital and labor that participate in economic transactions with the aim and desire to gain profit then profit tax will be levied.

If the PF has no intention to make profit but has obtained positive results for a couple of years then there is a chance that the PF qualifies as a company that conducts a real business and will be subject to the Netherlands Antilles profit tax. The applicable rate is 34.5%.

The PF does not conduct a real business in the following cases (e.g.):

   1. The PF is engaged in investment activities and those activities qualify also as ‘usual’ asset management activities.
   2. The PF obtains profit but does not participate in economic transactions.

The PF can request the Inspectorate of Taxes for a tax ruling if there are some doubts about its activities. Then the Inspectorate of taxes determines whether the PF conducts or does not conduct a real business.

Although the PF is not subject to profit tax, it is required to file the tax returns (including the annual results/ statement of assets and liabilities and/or the tax ruling) whenever a tax return has been issued. The policy of the tax authorities is to send one form for the first year of incorporation to acquire the information about the activities the PF under takes. If the PF is not engaged in a business, the tax form will not be issued in the next few years.

Gift tax

The PF’s distributions (the gifts made) are exempt from Netherlands Antilles gift tax. Contributions of assets to the PF are subject to Netherlands Antilles gift tax only if the donor is a resident of the Netherlands Antilles. The donor will be subject to the Netherlands Antilles gift tax of 25%. If the donor is not a resident of the Netherlands Antilles then no Netherlands Antilles gift tax will be levied. Gift tax may be due in the donor’s country of residence.

Practical application

Holding activities

Income earned with holding activities is tax exempt if the PF qualifies as a passive holding company. The involvement of the PF with regards to its holdings is hereby the matter of major concern. For example: the PF does not qualify as a passive holding company if the PF is the managing director of its subsidiary, the effective management is controlled by the PF, the PF decides and has the actual control of those activities.

Investment activities

The PF can invest its assets in e.g. stock, savings account, debentures, and valuable papers that qualify as investment activities. The PF is not conducting a real business if the PF derives income from (usual asset management) investment activities.

Passive financing activities

The PF can grant loans to related or not related parties. The PF may borrow funds from related or unrelated parties and subsequently lend on that capital. The borrowings and onlendings may be on an interest bearing or non-interest bearing basis, but in this case the difference between conducting a business and not conducting a business is small. We therefore advice to discuss the actual activities with the tax inspector to make sure whether the exempt status is applicable.

Insurance/ annuity/ pensions

Insurance policy, annuity policy and pensions can be undertaken in a PF. The PF is not conducting a real business in case those who are entitled to the benefits of the above mentioned assets are part of a domestic circle; otherwise the PF is conducting a real business.

Charitable objective

If the PF is active for charitable purposes e.g. contributions to institution for common good, charitable institution, church, then the PF is not conducting a real business.

The aforementioned information on the Netherlands Antilles Private Foundation is designed to provide a general understanding of the Netherlands Antilles tax aspects of the Netherlands Antilles Private Foundation. The information provided should be used for guidance only.

The summary is not intended to be comprehensive, and no specific action should be taken on the basis of this information without consultation of one of our tax lawyers/ consultants.

For further information please contact directly the tax lawyer/consultant of Spigthoff Attorneys & Tax advisers in Curacao at (telephone) (5999) 461 8700 or (facsimile) (5999) 461 8073

Xandra M. Kleine-van Dijk
Tax lawyer- Partner
This email address is being protected from spambots. You need JavaScript enabled to view it.

Spigthoff Attorneys & Tax Advisers