Netherlands: Financial instrument treated as equity (Supreme Court decision)

Financial instrument issued by a French company must be treated as equity, and not debt, for corporate income tax purposes

Financial instrument issued by a French company must be treated as equity, and not debt

The Dutch Supreme Court on May 17, 2024, held that a financial instrument issued by a French company (i.e., an obligation remboursable en actions (ORA)) must be treated as equity (capital), and not debt capital (loan), for corporate income tax purposes.

The ORA had a term of 50 years after which it would be converted into ordinary shares of the company. The nominal amount of an ORA was the same as the issue price of a new share in the company at the time the ORA was issued. After a period of 12 years following issuance of the ORA, the company could each year demand that the ORA be exchanged for ordinary shares in the company. After a period of three months after issuance of the ORA, the holder of the ORA could ask to exchange it for shares in the company, but the ORA holder generally did not have any shareholder rights, such as voting rights. Payment on the ORA was the same as the dividend distributed by the company, with a certain minimum and maximum payment. An ORA holder could only demand payment in cash with respect to the ORA upon voluntary or involuntary liquidation of the company, in which case holders of ORAs would have precedence over all shareholders and holders of participating loans provided to the company.

Read a May 2024 report prepared by the KPMG member firm in the Netherlands



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