Dutch STAK receipts qualify for Finnish share-exchange relief

Keskusverolautakunta treats a Finnish holder of Dutch STAK depositary receipts as the direct holder of the underlying shares for Finnish tax purposes when the STAK is transparent in the Netherlands.Vero

Applicant A held depositary receipts issued by STAK B, a Dutch vehicle constituted by agreement. The receipts entitled A to the economic rights of B-series shares in C BV held by the STAK. STAK B had no share capital, no shares and no shareholders; its board exercised control, receipt holders had no control and no right to demand conversion of receipts into the underlying shares. Under the STAK's rules, dividends and other payments on the administered shares had to be passed on immediately to receipt holders, with corresponding new receipts issued for bonus shares, share issues and reorganisations.

For Netherlands corporate income tax the STAK was not a separate taxpayerVero. Income and gains flowing through it were taxed directly in the hands of the receipt holdersVero, it could not be a treaty person, and the arrangement at issue was treated in the Netherlands as a share exchange in which the receipt holders disposed of sharesVero. Taking the STAK's legal features, A's economic rights and the Netherlands treatment together, the Board considered income received through STAK B taxable to A as if A had received it directlyVero. A disposal of C BV shares by STAK B was therefore tested as if A had disposed of the shares itself.Vero

D BV already held more than half of the votes in C BVVero. It acquired the remaining C BV shares from STAK B and other shareholders and paid only with its own newly issued C-series sharesVero; no cash consideration was givenVero. After the exchange, the depositary receipts over C BV B-shares granted to A were cancelled and the STAK issued A depositary receipts over the new D BV C-shares.

The arrangement matched the situation described in the Business Income Tax Act.Vero The Act imposes no legal-form requirement on the transferring shareholder in a share exchangeVero, and, taking into account Article 8(3) of the Merger Directive, the Board classified the transaction as a share exchange within section 52 f(1) for A's taxationVero. Gain arising in the exchange is therefore not treated as A's taxable incomeVero and loss is not treated as a deductible expense under Income Tax Act section 45(5)Vero. Shares received in the exchange take over the undepreciated acquisition cost of the shares given up for tax purposes.Finlex To the extent any part of consideration were paid in cash, that part would be treated as a taxable disposal.Finlex

The advance ruling is given for tax years 2026 and 2027Vero and is not yet finalVero. Advisers on cross-border share exchanges involving Dutch depositary-receipt structures should test the STAK's pass-through features, confirm the acquirer's pre- and post-exchange voting majority and keep consideration in shares where deferral is wanted, since cash would break the relief pro rataFinlex.

Legal basis: Tuloverolaki 45 § 5 momentti, laki elinkeinotulon verottamisesta 52 f § 1 momentti and Council Directive 2009/133/EC as listed in the ruling.