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New Dutch tax loss utilization rules substantively enacted as per 28 May 2021

The new Dutch tax loss utilization rules that should take effect per 1 January 2022, were not substantively enacted per year-end 31 December 2020, in anticipation of an implementation test of the new rules. This implementation test has been performed and resulted in a positive outcome that was published on 28 May 2021. As a result, the status of the new tax loss utilization rules has been changed to 'substantively enacted' as per 28 May 2021. For completeness sake, we note that these new rules in the meantime have been 'enacted' as per 4 June 2021.

The new Dutch tax loss utilization rules result in an indefinite loss carry-forward period as of 1 January 2022. However, losses can only be fully deducted (on an annual basis) up to an amount of EUR 1 million plus 50% of the taxable profit that exceeds EUR 1 million. There are no transitional rules for already available tax losses as per 31 December 2021, which implies that all (expected) cumulated tax losses available as per 31 December 2021 can be used indefinitely.

Dutch GAAP and IFRS require a company to measure current and deferred income taxes based on tax laws that are 'enacted' or 'substantively enacted'. A deferred tax asset shall be recognized for the carryforward of unused tax losses to the extent that it is probable that future taxable profits will be available against which the unused tax losses can be utilized. As the new tax loss utilization rules were substantively enacted per 28 May 2021, these new rules should be considered for (interim) reporting periods ending on or after 28 May 2021.