Asset protection is the area of structuring where the vocabulary has drifted furthest from the substance. Dutch law contains nothing that places assets beyond the reach of a legitimate creditor, and any description suggesting otherwise is describing something other than Dutch law. What Dutch law does contain is a coherent set of devices for allocating risk: legal personality, limited liability, the separation of activities into distinct entities, and the stichting, an entity with no owners at all. Used with discipline, these produce outcomes that hold. Used carelessly, they produce a structure that fails at the moment it is first tested, which is invariably the only moment that matters.
What legal personality actually does
A BV or NV incorporated by notarial deed and registered with the KVK is a distinct person in law, since article 2:3 of Book 2 of the Civil Code gives both forms legal personality. It holds its own assets, incurs its own obligations, contracts in its own name and defends its own disputes. That is the entirety of the protection, and it is considerable. A claim arising out of the activity of one company attaches to the assets of that company; the shareholder’s exposure is, as a starting point, the capital it has committed and whatever it has additionally guaranteed. Articles 2:64 and 2:175 of the Civil Code state that a shareholder of an NV or a BV is not personally liable for what is done in the company’s name and need not contribute to its losses beyond what must be paid up on its shares, and for the BV that rule is expressly without prejudice to the obligations its articles may attach to the shares under article 2:192.
The qualification matters more than the principle. Most erosion of limited liability in practice is voluntary. Parent company guarantees, comfort letters with operative wording, cross-collateralized facilities, joint and several undertakings in leases, and the joint and several liability that article 39 of the Invorderingswet 1990 imposes on each subsidiary or member company of a fiscal unity for the fiscal unity’s corporate income tax over the periods in which it belonged to it all reconnect what the corporate form separated. A structure chart tells you very little; the guarantee schedule tells you where the risk actually sits, and mapping existing undertakings comes first, because they usually override the architecture about to be built.
Segregating risk across entities
The classic application is to stop one risk from contaminating everything else. Trading activity carries operational, employment, product and environmental exposure. Real property, intellectual property and surplus cash carry very little of it, and placing them all in one balance sheet means a single operational claim reaches everything.
Segregation into separate entities under a common holding company addresses this, and the Dutch corporate income tax system does not penalize it. Dividends and capital gains on qualifying shareholdings fall within the participation exemption of article 13 of the Wet op de vennootschapsbelasting 1969, which is mandatory rather than elective. For a shareholding it starts, as a rule, from at least five per cent of the paid up nominal capital, and the same article withdraws it for a participation held as a portfolio investment unless that participation passes the subject to tax test or the asset test, among the further limitations the article sets out. Because the exemption is symmetrical, losses on those holdings are equally non deductible outside the separate liquidation loss rule of article 13d and its conditions, a point that is frequently overlooked when segregation is proposed as a way of isolating a loss making activity. The mechanics are set out in our note on how the participation exemption operates in practice.
Segregation has a price in operating discipline. Intercompany rent, licence fees, management charges and funding must be priced at arm’s length and documented, because article 8b of the Wet op de vennootschapsbelasting 1969 applies without a materiality threshold and requires records showing how the prices were set and whether they are on arm’s length terms. Under article 29g of the same act a group entity of a multinational group that is liable to Dutch corporate income tax keeps a master file and a local file once consolidated group revenue reached fifty million euros in the preceding year, and article 29c does not impose country by country reporting on multinational groups whose consolidated group revenue in the preceding year was below seven hundred and fifty million euros, but the substantive arm’s length obligation exists from the first intercompany invoice. Group funding also encounters the earnings stripping limitation of article 15b, which in the version in force for 2026 denies deduction of the net interest balance to the extent it exceeds the higher of 24.5 per cent of adjusted profit, broadly fiscal EBITDA, and one million euros. A structure that segregates assets while pricing the resulting flows arbitrarily has swapped one exposure for another.
The stichting as an entity without owners
The stichting is the Dutch foundation. It has no members, which article 2:285 of Book 2 of the Civil Code makes part of its definition, and no shareholders. It has a board, a purpose set out in its articles, and assets dedicated to that purpose. Nobody owns it, which is the whole point and also the source of most misunderstanding about it.
Because there are no shares, there is nothing for a creditor of a founder or beneficiary to attach at the level of the entity, and nothing to be transferred on a death or a divorce. In exchange, the founder gives up ownership permanently. Control is exercised through the board, and through any powers the articles reserve to others, such as appointing the board, and only within the purpose in the articles. If the articles are drafted so that the founder retains power to direct assets back to himself, the separation is nominal, and both civil courts and the tax authorities are entitled to look at how the entity has actually behaved rather than at what its deed says. For income tax the attribution is statutory: where a foundation is a separated private fund within the definition of article 2.14a of the Wet inkomstenbelasting 2001, its assets and income are attributed to the person who contributed them and, after that person’s death, to the heirs, under the rules of that article.
Certification through a STAK
The stichting administratiekantoor is the narrower and, for corporate groups, the more useful application. The STAK holds the legal title to shares in an operating or holding company and issues depositary receipts, the certificates, to the economic beneficiaries. Voting rights stay with the STAK board; dividends and value flow through to the certificate holders.
This separates control from economic entitlement without fragmenting the shareholder register. It keeps decision making coherent while ownership disperses across a family, makes a management participation plan workable without giving every participant a vote, and prevents shares reaching an unintended holder on the death or insolvency of a certificate holder. What it does not do is remove the certificate holder’s economic interest from his own estate. Certificates are assets. They can be attached, valued, inherited and taxed. A STAK reorganizes control; it does not make wealth disappear, and it is not a shield against the certificate holder’s own creditors.
What protection does not survive
Several things defeat every structure described above, and they defeat it comprehensively.
The first is fraud on creditors. Under article 3:45 of Book 3 of the Civil Code any prejudiced creditor can annul a voluntary act that the debtor knew or ought to have known would prejudice creditors, and an act for consideration performed with or towards particular persons can be annulled on that ground only if they also knew or ought to have known it; article 3:46 presumes that knowledge on both sides for the categories of act it lists, when performed within the year before annulment is invoked and not already committed to before then, and in a bankruptcy article 42 of the Faillissementswet gives the trustee the equivalent power. Timing is decisive: a structure implemented while solvent and for demonstrable commercial reasons stands on entirely different ground from one implemented when a claim is foreseeable. Restructuring in the shadow of a dispute is not asset protection; it is evidence.
The second is failure to respect the separation in practice. Commingled bank accounts, intercompany balances that nobody settles, invoices issued by whichever entity is convenient, directors who never meet, and decisions taken by a person with no formal role all supply the material for arguing that the entities were never genuinely distinct. Dutch law also attaches personal liability to directors. Article 2:9 of the Civil Code makes each director liable to the legal entity for improper management unless no serious reproach can be made against him and he did not neglect to take measures to avert its consequences. In the bankruptcy of a BV, article 2:248 makes each director jointly and severally liable to the estate for the deficit where the board manifestly failed in its task and this is plausibly an important cause of the bankruptcy; where the board did not meet its bookkeeping duty under article 2:10 or its duty to publish the annual accounts under article 2:394, or in the further case that article 2:248(2) sets out, the board is deemed to have performed its task improperly and that is presumed to be an important cause of the bankruptcy, with unimportant omissions disregarded, subject to the defences, time limit and reductions that article 2:248 sets out. The individuals inside a structure therefore carry exposure that the structure itself does not remove.
The third is fictitious governance. A board that exists on paper, resolutions signed retrospectively, and a registered office that receives post are not substance. Under the Besluit vooroverleg rulings met een internationaal karakter, in force since 1 July 2019, the tax authorities enter into advance discussions on a ruling with an international character only where the requesting entity belongs to a group with real operational activities in the Netherlands and operational activities are carried on at its own account and risk, with sufficient relevant personnel in the Netherlands at group level and with activities that fit its function within the group, requirements the decree disapplies in full where the certainty sought is that there is no liability to Dutch corporate income tax as a non resident taxpayer within the meaning of articles 17 or 17a of the Wet op de vennootschapsbelasting 1969. The same decree lists the cases in which no such ruling is given, which include arrangements whose sole or decisive motive is saving Dutch or foreign tax and the tax consequences of direct transactions with entities in states on the Dutch list of low tax and non cooperative jurisdictions, subject to the exceptions it sets out. The broader expectations are addressed in our note on substance in Dutch holding structures.
Protection is produced by the discipline with which a structure is operated, not by the vehicle in which it is drawn. The deed is signed once; the discipline is exercised in every year that follows.
Transparency as the operating environment
Legitimate protection now operates alongside disclosure, and the two are compatible. The UBO register maintained by the KVK under article 15a of the Handelsregisterwet 2007 records those who qualify as ultimate beneficial owners under the categories of article 3 of the Uitvoeringsbesluit Wwft 2018; general public access was restricted following the judgment of the Court of Justice of the European Union of 22 November 2022 in joined cases C-37/20 and C-601/20, and article 21 of the Handelsregisterwet 2007 no longer includes that data among what anyone may inspect, but access by competent authorities and by obliged entities for their customer due diligence continues under articles 22a and 28 of the Handelsregisterwet 2007, and banks will ask. Certification through a STAK does not remove the reporting question, it changes its analysis: the register looks through to those with ultimate ownership or control, which may include certificate holders, board members of the foundation, or both. Where the shareholders are foreign, the practical consequences are discussed in our note on the UBO register and non resident shareholders.
Alongside this sit DAC6, introduced by Council Directive (EU) 2018/822, which requires reporting of cross border arrangements bearing certain hallmarks with the obligation falling on the intermediary or, failing that, on the taxpayer, and the conditional withholding tax of the Wet bronbelasting 2021, levied since 2021 on interest and royalties and since 2024 on dividends paid to an affiliated entity in a low tax or listed jurisdiction, and in the further cases, and with the exceptions, that article 2.1 of that act sets out. A structure designed on the assumption that it will not be seen is designed against the current regime.
A worked example
A family controlled industrial group has a Dutch trading company, a manufacturing site it owns, a portfolio of registered trade marks and accumulated surplus cash. Ownership is passing to a second generation of several members with unequal involvement in the business.
A defensible arrangement separates the trading activity from the property and the trade marks, each in its own BV beneath a holding BV, with the surplus cash retained at holding level. Rent and licence fees are set on arm’s length terms and documented under article 8b. Distributions from the operating companies to the holding fall within the participation exemption, so those upstream dividends carry no corporate income tax cost, though distributions by the holding to its shareholder remain subject to the fifteen per cent dividend tax of article 5 of the Wet op de dividendbelasting 1965 unless an exemption or reduction under that act or a treaty applies. A STAK holds the shares in the holding BV and issues certificates to the family members, with a board mandated in the articles to vote the shares and a defined route for succession to it. The UBO filing is made on that basis, and the arrangement is assessed against DAC6 hallmarks before implementation rather than afterwards.
The protection here is real but narrow. An operational claim against the trading company does not reach the site or the marks. A dispute among the family does not paralyse the operating board. What it does not do is defeat a creditor of an individual certificate holder, shelter the group from its own tax obligations, or survive a year in which the boards do not meet, the rent is not invoiced and the cash moves between entities without documentation. The vehicle sets the ceiling; the operating discipline determines how much of it is reached.
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This article is informational and does not constitute tax advice. Each engagement is subject to scope and applicable regulation.