Dutch Sandwich

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Ex. Dutch Minister Joop Wijn credited with introducing the Dutch Sandwich IP-based BEPS tool (which is often used with the Double Irish BEPS tool), and the "Dutch Double Dip" Debt-based BEPS tool

Dutch Sandwich is a base erosion and profit shifting ("BEPS") corporate tax tool, used mostly by U.S. multinationals to avoid incurring EU withholding taxes on untaxed profits as they were being moved to non-EU tax havens (such as the Bermuda black hole). These untaxed profits could have originated from within the EU, or from outside the EU, but in most cases were routed to major EU corporate-focused tax havens, such as Ireland and Luxembourg, by the use of other BEPS tools.^[1][2] The Dutch Sandwich was often used with Irish BEPS tools such as the Double Irish, the Single Malt and the Capital Allowances for Intangible Assets ("CAIA") tools. In 2010, Ireland changed its tax-code to enable Irish BEPS tools avoid such withholding taxes without needed a Dutch Sandwich.

Explanation

The structure relies on the tax loophole that most EU countries will allow royalty payments be made to other EU countries without incurring withholding taxes. However, the Dutch tax code allows royalty payments to be made to several offshore tax havens (like Bermuda), without incurring Dutch withholding tax.^[3]

The Dutch sandwich therefore behaves like a "backdoor" out of the EU corporate tax system and into un-taxed non-EU offshore locations.^[4][5]

These royalty payments require the creation of intellectual property ("IP") licensing schemes, and therefore the Dutch sandwich is limited to specific sectors that are capable of generating substantial IP. This is most common in the technology, pharmaceutical, medical devices and specific industrials (who have patents) sectors.^[6]

Its creation is generally attributed to Joop Wijn (State Secretary of Economic Affairs in May 2003) after lobbying from U.S. tax lawyers from 2003-2006.^[7][8]

[When] former venture-capital executive at ABN Amro Holding NV Joop Wijn becomes State Secretary of Economic Affairs in May 2003 [, ... it's] not long before the Wall Street Journal reports about his tour of the US, during which he pitches the new Netherlands tax policy to dozens of American tax lawyers, accountants, and corporate tax directors. In July 2005, he decides to abolish the provision that was meant to prevent tax dodging by American companies, in order to meet criticism from tax consultants.

— Oxfam/De Correspondent, "How the Netherlands became a Tax Haven", 31 May 2017.^[7][8]

Double Irish

Irish Taoiseach Enda Kenny and PwC (Ireland) Managing Partner Feargal O'Rourke, the "architect" of the double Irish, who lobbied successfully in 2010 for changes to the Irish withholding tax rules, thus removing the need for a Dutch sandwich.

The Dutch sandwich is most commonly associated with the double Irish^[1][2] tax structure (and Irish-based US technology multinationals like Google^[9][10]).

The double Irish uses an Irish company (IRL2) that is legally incorporated in Ireland (thus the US tax code regards it as foreign), but is "managed and controlled" from, say, Bermuda (thus the Irish tax code regards it as foreign). The Dutch sandwich (with the Dutch company as the "dutch slice" in the "sandwich") is used to move money to this Irish company (IRL2), without incurring Irish withholding tax.^[11]

Lobbying from PriceWaterhouseCoopers Irish Managing Partner Feargal O'Rourke^[12] (the labelled "architect" of the double Irish^[13][14]), led to the Irish Government relaxing the rules in 2010 for making Irish transfers (as royalty payments) to non-EU companies (i.e. IRL2), without incurring Irish withholding tax (removing need for the Dutch sandwich), but they are subject to several conditions that will not suit all types of double Irish arrangements,^[15][16][17] and thus several US multinationals in Ireland continued with the classic "double Irish Dutch sandwich" combination.^[9]

After pressure from the EU,^[18] the double Irish loophole was closed in 2015,^[19] however, new Irish schemes have been created to replace it:^[20][21]

• Microsoft's and Allergan's single malt Irish corporate tax scheme;^[22][23]
• Apple's and Accenture's capital allowances for intangible assets Irish corporate tax scheme.^[24][25][26]

Conduit OFC

The Dutch Sandwich has helped make the Netherlands the largest global conduit OFC in the world, as it facilitates the movement of EU-sourced profits to non-EU tax-havens

The dutch sandwich has been a key vehicle in making the Netherlands the largest (almost equal to the next 4 combined), of the 5 global conduit ofcs that were identified in the seminal analysis of offshore financial centres "Uncovering Offshore Financial Centers: Conduits and Sinks in the Global Corporate Ownership Network".^[27][28][29]

The 5 global conduit ofcs (Netherlands, United Kingdom, Ireland, Singapore and Switzerland) are countries that are not formally labelled "tax havens" by the EU/OCED, but who have "advanced" legal and tax structuring vehicles that can legally route funds to 24 tax havens (called sink ofcs), without incurring tax in the conduit ofc.

Conduit ofcs tend to be dominated by major offices of large law and accounting firms (who create the vehicles), while sink ofcs have smaller operations (often branches of these firms). They advise clients on anticipating future changes (i.e. from slow-moving OECD BEPS processes) that may need new loopholes.^[30] They write most of the State's relevant SPV legislation (where they create the new loopholes).

Ireland enables US IP-heavy multinationals to reroute gross profits made in any EU country, into Ireland, tax-free. The Netherlands then enables this Irish money to get to a tax haven.^[27]

See also

• Tax exporting
• Tax inversion
• Bermuda Black Hole
• Irish Financial Services Centre
• Feargal O'Rourke
• Matheson (law firm)

References