For decades, the Dutch tax treatment of the commanditaire vennootschap and the fonds voor gemene rekening turned on a question that had no equivalent anywhere else: whether the admission or substitution of a participant required the unanimous consent of the others. That single drafting point decided whether a vehicle was opaque and liable to Dutch corporate income tax, or transparent and invisible for tax purposes. Since 1 January 2025 that criterion has gone. Two separate statutes did the work on the same date: the Wet fiscaal kwalificatiebeleid rechtsvormen, whose operative articles were deferred to 1 January 2025, abolished the independent tax liability of the open commanditaire vennootschap and codified how foreign entities are classified, while the Wet aanpassing fonds voor gemene rekening en vrijgestelde beleggingsinstelling replaced the definition of the fund for joint account. The classification of both vehicles now follows a framework built around international comparability rather than a domestic contractual formality, and the change operates by force of law rather than by election. For groups whose platforms were designed around the previous position, the relevant question is no longer whether the structure was well drafted at the time, but whether the assumptions it encodes still hold.
What the consent requirement actually decided
Under the previous regime a CV was open, and therefore opaque, if limited partners could join or be replaced, otherwise than by inheritance or legacy, without the consent of all partners, general and limited alike; it was closed, and therefore transparent, if that consent was required. That is exactly how the definition of an open commanditaire vennootschap in the General Tax Act read until 31 December 2024. A consent test governed the FGR as well, in a different form: under the version of article 2 of the Corporate Income Tax Act then in force, units were treated as negotiable, and the fund therefore opaque, unless their disposal required the consent of all participants, with carve-outs where units could only be sold back to the fund or passed to relatives in the direct line. In practice the outcome was almost always drafted for, not discovered: partnership deeds and fund terms were written to produce the classification the sponsor wanted, and the resulting entity was then presented to counterparties and to foreign tax authorities as either a taxable person or a mere contractual arrangement.
The difficulty was that no other system asked the same question. A vehicle that was opaque in the Netherlands could be transparent in the jurisdiction of its investors, or the reverse, and the mismatch was structural rather than accidental. Hybrid entity outcomes followed: deductions without inclusion, double relief, treaty entitlement claimed at one level and denied at another. As the anti-hybrid provisions derived from the second Anti-Tax Avoidance Directive came into force, denying deduction wherever a payment produces a deduction without inclusion or a double deduction, a classification rule that had once been a planning instrument became a source of exposure.
The new framework for entity classification
The CV is now transparent as a matter of principle, and no longer appears anywhere in the list of resident corporate income taxpayers in article 2. The distinction between open and closed forms has been removed, and with it the practice of drafting consent clauses for classification purposes. The VOF and the maatschap are transparent too, although describing them as untouched overstates the case, since the old provision also caught partnerships whose capital was divided into shares and the transitional regime therefore extends expressly to partnerships that were subject to corporate income tax immediately before 1 January 2025. The comparison between partnership and corporate forms is now more predictable for anyone selecting a Dutch vehicle at the design stage.
For foreign entities, the Netherlands now applies a legal form comparison as the primary method: the foreign entity is measured against the Dutch legal forms and classified as its closest domestic analogue, under rules laid down in article 1a of the Corporate Income Tax Act and worked out in the decree on the comparison of foreign legal forms, with its annexed list of foreign forms. Where no meaningful analogue exists, supplementary methods apply. An entity established in the Netherlands but not comparable to any Dutch form is treated as non-transparent; an entity established abroad is, in broad terms, followed in the classification given to it by the state that treats it as resident. The design intent is symmetry, and the practical effect is that Dutch classification now depends on facts that sit outside Dutch documentation.
The FGR and the tradability test
The fonds voor gemene rekening has been redefined rather than merely realigned. Opacity now depends on two cumulative conditions: the fund must qualify as an investment fund or a collective investment undertaking in securities as those terms are defined in the Financial Supervision Act, which turns on money or assets being sought or obtained for collective investment, and its participation rights must be evidenced by negotiable certificates. The statute now contains a single deeming rule on negotiability, under which units are not negotiable where disposal can only take place to the fund itself. The former carve-out for transfers within the direct family line has not been carried across, so a private pooling arrangement falls outside the definition because it is not an investment fund in the supervisory sense, not because a tradability exception saves it.
This is a material narrowing. Many FGRs were established not as collective investment products but as private pooling arrangements: family holding pools, joint venture co-investment vehicles, employee participation structures. Those arrangements often relied on opacity for confidentiality as much as for tax, since an opaque entity is the taxpayer and the participants are one step removed. Where the fund no longer meets the definition, it is transparent, and the participants are exposed directly to the underlying income and gains, with the registration and reporting consequences that follow. Beneficial ownership disclosure is not one of them, and the distinction matters: the UBO register for trusts and similar legal arrangements kept by the KVK covers funds for joint account whether they are open or closed, so that obligation neither arrives nor departs with a change in tax classification.
Classification is not a label attached to a vehicle. It is the point at which two tax systems either meet or fail to meet, and the cost of a failure is paid at the level of the investor, not the entity.
Structures that relied on opacity
Where a vehicle ceases to be opaque, it ceases to be a taxpayer, and the consequences are not confined to the entity itself. A CV or FGR that previously held qualifying shareholdings applied the participation exemption at its own level; once transparent, the exemption is tested where the participants sit, and a participant that does not hold the minimum interest of 5 per cent required by article 13, or that fails the motive, subject-to-tax and asset tests on its own facts, obtains a different answer from the one the structure was built on. The exemption is mandatory and symmetrical, so a participant cannot choose to disapply it where the outcome is unwelcome.
Treaty access changes in the same direction. An opaque vehicle claimed treaty benefits in its own right; a transparent one cannot, and entitlement depends on the residence and characteristics of each participant, tested against the anti-abuse provisions in the relevant instrument. The withholding position on outbound flows requires the same re-examination: dividend withholding tax at the general rate of 15 per cent, reductions and exemptions available under treaty or European law, and the conditional withholding tax on interest and royalties directed to jurisdictions taxing profits below 9 per cent or appearing on the European list of non-cooperative jurisdictions, all now applied to a different payer and a different chain of recipients.
Three further points tend to be overlooked. First, the earnings-stripping limitation, which allows the higher of 24.5 per cent of fiscal EBITDA and one million euro, is computed at the level of the taxpayer, so the disappearance of a taxpayer redistributes fiscal EBITDA and the benefit of the minimum threshold across the group. Second, article 8b applies to related-party dealings without a materiality threshold, and dealings that were previously internal to an opaque entity may now be related-party transactions requiring arm’s length pricing and documentation, with Master and Local File obligations engaged from fifty million euro of consolidated group revenue. Third, the transition itself is an event: under the final settlement rule, gains not already taken into account fall into the profit of the year in which the taxpayer ceases to derive taxable profit in the Netherlands, so the tax consequences arise at the moment of change rather than on a later disposal. For the changeover on 1 January 2025 itself the legislator softened that outcome, since the Wet fiscaal kwalificatiebeleid rechtsvormen carried roll-over relief, a share merger facility, a transfer tax exemption and a continuation of existing payment deferrals, none of which assists a reclassification occurring later.
Structures that relied on transparency
The mirror case is less discussed but no less relevant. A vehicle that was transparent under the old test, or that was assumed to be transparent because a comparable foreign entity had always been treated that way, may now be classified differently, either in the Netherlands or in the counterparty state applying its own comparison. Foreign limited partnerships holding Dutch assets, non-Dutch funds with Dutch feeder arrangements, and hybrid financing chains all depend on a classification that is no longer determined by the terms of the deed alone. For funds that would have become opaque on 1 January 2025 the legislator has since provided two ways out, both found in the transitional articles of the act that redefined the fund for joint account: units are deemed non-negotiable where the terms were amended to redemption only by 31 December 2025 and that intention already existed before 1 January 2025, and a later election, introduced with retroactive effect to 1 January 2025, allows such a body to be treated as not being a fund for joint account at all. That election is due to lapse on 1 January 2028, and a body that had not already intended, before 1 January 2025, to restrict transfers to redemption by the fund could only make it with the consent of its participants, given by 28 February 2026.
Where Dutch real estate is held, the analysis extends to transfer taxation. Since 1 January 2026 the schedule has three tiers rather than two, with a general rate of 10.4 per cent, 8 per cent for residential property and 2 per cent where an individual will occupy the dwelling as a main residence, and the acquisition of shares or participations can itself fall within the charge where they are treated as deemed immovable property, which requires the entity’s assets to consist predominantly of immovable property with at least 30 per cent of them situated in the Netherlands, and where the acquirer crosses the interest thresholds set out in the same article. A change in the classification of the holding vehicle, or a restructuring undertaken in response to one, can alter whether an interest is an interest in property or an interest in an entity, and the two are not taxed alike.
Why legacy structures merit a formal review
Most affected structures were built competently under the rules then in force. The exposure comes from classification having been an input to every other conclusion in the file: treaty entitlement, exemption at the level of the holding entity, withholding analysis, financing capacity, reporting obligations. When the input changes by operation of law, the conclusions do not update themselves, and the documentation continues to assert a position that is no longer accurate.
Rulings deserve particular attention. Under the policy on advance rulings with an international character, in force since 1 July 2019 and last amended in December 2023, an advance ruling requires genuine economic nexus in the form of operating activities carried on in the Netherlands for the account and risk of the applicant, and is not granted where the saving of Dutch or foreign tax is the sole or decisive motive or where designated low-taxed and non-cooperative jurisdictions are involved. A ruling is also bound to the facts as presented. Where those facts included the opacity of a CV or FGR, the instrument may no longer describe the arrangement it was issued for. Substance is the related question: the operating footprint that supported the original position, including board composition, decision-making location and the capacity to bear risk, should be tested against current expectations rather than the standard in place when the platform was assembled.
A workable review sequence is short. Inventory every partnership and fund vehicle in the group and record how each is classified in the Netherlands and in every state where a participant or an asset sits. Identify the mismatches, and separate those that produce a hybrid outcome from those that are merely inconvenient. Re-test the participation exemption, treaty entitlement and withholding analysis at the level that now matters. Confirm whether any remedial restructuring carries a DAC6 hallmark, since the reporting obligation falls on the intermediary and, in the absence of one, on the relevant taxpayer. Finally, revisit the indirect tax position, since removing or inserting an entity affects whether management services are supplied for consideration and whether the financial, organizational and economic links required for a VAT group remain in place.
The position after the change
The reclassification removes an anomaly rather than a benefit. A Dutch platform continues to rest on the same components it did before: corporate income tax at the headline rate of 25.8% above a taxable amount of 200,000 euro, with a reduced rate of 19% in the first bracket, a mandatory participation exemption, an extensive treaty network subject to anti-abuse testing, and a regulated ruling practice for groups with real activity. What has gone is the ability to select opacity or transparency through a clause in a deed, and with it a category of arrangements that worked only because two systems described the same vehicle differently. Groups whose structures depended on that difference should assume the position has moved. Groups whose structures depended on genuine activity will find that very little has.
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This article is informational and does not constitute tax, legal or investment advice. Each engagement is subject to scope and applicable regulation.