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Dutch Supreme Court hands down long-awaited judgment in ‘most favoured nation’ clause dispute

Monday, 28 January 2019   (0 Comments)
Posted by: Author: Mareli Treurnicht
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Author: Mareli Treurnicht (Cliffe Dekker Hofmeyr)

The wait is finally over. On 18 January 2019 the Dutch Supreme Court (Hoge Raad) found in favour of the taxpayer in its judgment under case number 17/04584, (Hoge Raad Judgment) pertaining to the interpretation of the ‘most favoured nation’ provision (Dutch MFN Clause) in the double taxation agreement (DTA) between South Africa (SA) and the Netherlands dated 10 October 2005, as amended by the Protocol concluded on 8 July 2008 and which entered into force on 28 December 2008 (SA/Netherlands DTA).

The case was an appeal by the Dutch Tax Authorities against an earlier decision of the Dutch High Court (Gerechtshof ‘s-Hertogenbosch) under case number 15/01361. In that decision the Dutch High Court ruled that the Dutch MFN Clause can apply to exempt taxpayers from dividends tax where a Dutch resident company pays dividends to a South African resident.

The Dutch Supreme Court judgment is of great importance to a number of South African taxpayers who are currently engaged in similar disputes with the South African Revenue Service (SARS) pertaining to the interpretation of the Dutch MFN Clause. One of those cases has been selected by SARS as a test case and Cliffe Dekker Hofmeyr acts as the attorneys for the taxpayer in that case.

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