Position Papers (beleid)

Dutch tax law can be complicated, also for individual tax inspectors. To ensure unity and conformity when implementing tax legislation, the Dutch tax authorities now and then publish a Position Paper (Standpuntbepalingen). These Position Papers are binding on tax inspectors (i.e., these constitute official policy (beleid)), while taxpayers can take a different position.

On December 19, 2023, the Transfer Tax Knowledge Group (Kennisgroep overdrachtsbelasting) confirmed and clarified that no real estate transfer tax is due upon the acquisition of a right of superficies for which no consideration nor contribution is agreed. The Position Paper describes the following scenario:

Case at hand

A BV and X enter into a lease agreement under which A BV leases out solar panels to X, whereby the solar panels are installed on the roof of a building owned by X. X pays rent to A BV under the lease agreement. X furthermore establishes a right of superficies in favor of A BV, ensuring that A BV will retain legal title to the solar panels. No consideration is due by A BV for the right of superficies, nor does he pay any retribution to X. The right of superficies is granted for a period equal to the lease period.

In general, the acquisition of a right of superficies is a taxable event for real estate transfer tax purposes. Transfer tax is due over the market value of the right of superficies plus the capitalized retribution (whereby the purchase price, if any, is the lower limit).

Relevant Questions & Position taken

The Position Paper answers the following two questions:

• Is real estate transfer tax due by A BV if A BV acquires the right of superficies before A BV installs the solar panels?
• Is real estate transfer tax due by A BV if A BV acquires the right of superficies after A BV installs the solar panels?

The Transfer Tax Knowledge Group takes the position that no real estate transfer tax is due in either one of the scenarios.

Right of superficies before installation solar panels

The Position Paper explains that the lease agreement obliges A BV to install the solar panels, does not include retribution (or any other form of consideration), and is dependent on the lease agreement. Taking this into account, and the fact that the solar panels are not yet installed, the right of superficies in itself has no value. The Position Paper also refers to the fact that the right of superficies is dependent on the lease agreement. Whether or not this needs to be a dependency as referred to in section 5:101 paragraph 2 of the Dutch Civil Code (whereby, in short, the right of superficies cannot exist without the lease agreement being in place and will terminate ipso iure in case of a termination of the lease) or whether this ‘dependency’ can be created in another way is not entirely clear from the Position Paper.

Right of superficies after installation solar panels

If the right of superficies is established after the solar panels are installed, the right of superficies includes the ownership and value of the solar panels. The value of the right of superficies is, therefore, (at least) equal to the value of the solar panels. However, A BV can invoke the exemption included in Article 15, paragraph 1, subsection i of the Dutch legal Transaction Taxation Act (Wet op belastingen van rechtsverkeer) because A BV installed the solar panels at its own expense. As a result, no real estate transfer tax should be due.

Read the Position Paper here.

In case you have questions about this topic, want to know the specifics of a ‘dependent’ right of superficies or would like to know how to properly structure a right of superficies, please feel free to contact our Real Estate & Energy Team for more information.