Executive summary

On 14 May 2024, the Parliament of Curaçao approved the National Ordinance on the Revision and Repair of Tax Regulations 2024 (the Ordinance). The Ordinance was published in the Official Gazette of Curaçao on 15 May 2024 and heralds a suite of amendments aimed at enhancing the robustness and clarity of Curaçao's tax laws. This Alert highlights the most important changes that the Ordinance makes to the General National Tax Ordinance (GTO) and the Profit Tax Ordinance 1940 (PTO). Namely, the Ordinance:

• Introduces an election method for the tax treatment of limited partnerships
• Removes substance requirements for investment companies that are registered with the Central Bank of Curaçao and Sint Maarten
• Codifies definitions that are relevant for the PTO
• Removes the 25% ownership threshold for the qualification as an Ultimate Beneficial Owner in the case of interests in partnerships
• Allows election as a Curaçao Investment Company to be subject to 0% profit tax in the profit tax return

Changes that the Ordinance introduces for other tax ordinances will be discussed in a separate Global Tax Alert. Unless otherwise indicated, the changes discussed below entered into force on 16 May 2024.

Detailed discussion

Most relevant changes to the GTO

The Ordinance introduces changes to the GTO to comply with the recommendations of the Organisation for Economic Co-operation and Development (OECD) included in the Supplementary Peer Review Report Exchange of Information on Request 2019 (Second Round) for Curaçao. Furthermore, the government considered it necessary to amend the GTO because Curaçao, as an International Financial Center, must meet international standards and norms to continue attracting international economic activities.

Qualification of limited partnerships

The qualification of a limited partnership as "open" (i.e., opaque) or "closed" (i.e., transparent for tax purposes) no longer depends on the requirements related to the admission or substitution of limited partner(s). Limited partnerships are considered closed unless the general partner, authorized by all partners, notifies the Tax Inspector in writing that the limited partnership elects to qualify as an open limited partnership. If this notification is submitted within three months of the partnership's formation, the classification is effective from the date of formation. Otherwise, it becomes effective from the beginning of the fiscal year after the notification is made. This classification remains in effect for the rest of the limited partnership's existence. The qualification is relevant for the profit tax and the real estate transfer tax in Curaçao.

Transparent status

The GTO provides that a written request must be filed with the Tax Inspector to qualify as a transparent company. The transparent status will only apply following explicit approval of the request by the Tax Inspector.

Record-keeping obligation

Entities, and their affiliated entities as defined in the PTO, that exempt part of their profits based on Curaçao's territorial system will be required to organize their administration and record the data in a way that enables the material costs, domestic and foreign causal costs, and non-causal costs to be established to determine the portion of profit that is considered non-domestic. This requirement entered into force with retroactive effect to 1 January 2020.

Amendments to the definition of Ultimate Beneficial Owners (UBOs)

The most important change in the UBO rules is the removal of any ownership threshold for interests in a partnership. All individuals who are directly or indirectly entitled to the profits of, or have voting rights in a partnership, as defined in Title 13 of Book 7 of the Curaçao Civil Code now qualify as UBOs for purposes of the GTO. The amendment will be pertinent for the identification of individuals to be registered in the recently installed UBO register.^{1, 2}

Under current legislation, some types of entities must retain their own UBO information and other entities must file their UBO information with the tax authorities. However, the GTO allows for a separate UBO (non-public) register to be formed.

Most relevant changes to the PTO

Clarification to scope of resident taxpayers

One significant change removes partnerships as taxable subjects for profit tax purposes. Partnerships will no longer be considered taxpayers for purposes of the profit tax, unless the partnership qualifies as a limited partnership (CV) and it has elected to be treated as an open CV (see above under GTO).

The scope of entities that are treated as resident taxpayers for profit tax purposes has been reworded to explicitly capture foreign legal entities that are effectively managed in Curaçao and are similar in form to, among others, a Curaçao private or public limited liability company. Similarly, a Curaçao private foundation now falls within the scope of resident taxpayers, regardless of the nature of its activities (i.e., active or passive). Nonetheless, the profit of a Curaçao private foundation remains exempt for Curaçao profit tax purposes when the activities of the private foundation do not arise to the level of an active business enterprise.

Definitions of territorial profit tax terms

The costs necessary to quantify non-domestic profit under the territorial profit tax rules of Curaçao and to meet the administration requirements outlined above have been codified.³ In this respect, the following definitions have now been included in the PTO:

• Causal costs are costs that have a causal relationship with the generation of revenue, not including material costs included in a product.
• Non-causal costs are costs that do not have a causal relationship with the generation of revenue, not including material costs included in a product.
• Domestic causal costs are causal costs to the extent that the underlying value-adding activities are performed in Curaçao.
• Foreign causal costs are causal costs to the extent that the underlying value-adding activities are performed outside of Curaçao.
• Foreign non-causal costs are that portion of the non-causal costs deemed to be in the same proportion to the total non-causal costs as the group's foreign causal costs are to its total causal costs. In applying this provision, "group" is defined as the taxpayer together with the entities established in Curaçao, as well as foreign companies to the extent that they conduct their business through a permanent establishment in Curaçao, belonging to the same group. If there is no group in Curaçao, only the foreign causal costs and the total causal costs of the taxpayer are considered.
• Material costs are the costs for physical materials, which include raw materials, semi-finished goods, auxiliary materials, and products that are used in the service delivery process or production process or finished products for sale.
• Royalty income constitutes fees of any kind paid for the use of, or the right to use, a copyright or design right on a work in the field of literature, art or science, including cinematographic films, patents, trademarks, drawings or models, plans, "secret" recipes or processes, or for information concerning industrial, commercial or scientific experience.

These definitions entered into force with retroactive effect to 1 January 2020.

Application for Curaçao Investment Company (CIC) status

For a company to qualify as a CIC under the PTO, it is no longer required to file a written request with the Inspector. Instead, the company must annually indicate in its profit tax return that:

• It meets the conditions for CIC status and therefore wishes to be treated as a CIC
• CIC status commenced (or ended) from the beginning of the particular calendar year

If it appears that not all conditions are met, CIC status will be retroactively revoked to the first moment when the conditions were no longer met. This automatic withdrawal is treated as a Tax Inspector decision that is subject to objection.

Substance requirements for the Special Purpose Fund

To be eligible for Special Purpose Fund (in Dutch: "Doelvermogen") status, a company must now meet the same substance requirements that apply for CIC status. Similarly, a request is no longer required be submitted to obtain the Special Purpose Fund status. Instead, the company must annually indicate this status in its profit tax return as outlined above for the CIC. If it appears that not all conditions are met, Special Purpose Fund status will be retroactively revoked to the first moment when said conditions were not met; this revocation is treated as a Tax Inspector decision and is subject to objection.

Substance requirements at taxpayer level

The substance requirements in Curaçao have been clarified to address the application at the taxpayer level. This update resolves the ambiguity surrounding fiscal unities, among other things, confirming that they can be treated as single entities for the purpose of meeting substance requirements as prescribed by the PTO.

In addition, the substance requirements no longer apply to investment institutions listed in Section I of the register for investment institutions and administrators (as referred to in the National Ordinance on the Supervision of Investment Institutions and Administrators⁴) that do not perform their own management and administrative services.

Restrictions on loss compensation

Within the applicable carryforward term, losses may now only be carried forward against the profit that is taxed in the tariff group to which the losses originally belonged, or against the profit that is taxed in a lower tariff group. Therefore, losses that are incurred from activities that are taxed at a lower tax rate may no longer set off profit that is generated from activities that are taxed at a higher rate.

Note that this information is of a general nature only and should not be regarded as an advice in respect of any specific situation. Taxpayers questions should consult their tax advisors.