[belanghebbende] B.V. v Inspecteur van de Belastingdienst — intra-group factoring

Distilled

The facts

The taxpayer is the group's factoring company, taking over and collecting trade receivables owed by third parties to group companies. The receivables run for at most 90 days and are acquired within that term on a non-recourse basis: ownership passes immediately and the debtor risk transfers in full. They are bought at nominal value less a factoring fee derived from an Applicable Rate, which has two components — an Applicable Margin, a fee for the factoring services plus a profit mark-up, and a Reference Rate, the three-month base rate for the relevant currency. Its result is the difference between purchase price and collections.

For 2019 the taxpayer returned EUR 33,899,616, then filed a revised return at EUR 26,151,579 on the footing that the earnings-stripping rule did not bite. The inspector assessed on the original figure, disallowing EUR 7,748,037 of interest expense and issuing a carry-forward decision. The question was whether the Reference Rate component is interest income on money lent within article 15b(2), which would reduce the net interest balance and free deduction capacity. Note the direction of travel: the taxpayer was arguing that its own receipts were interest.

The decision

The appeal was dismissed and the judgment below confirmed. The Court split the arrangement into two relationships and found no loan in either.

Against the group companies there is a purchase of assets: ownership passes in full, the debtor risk with it, and the relationship ends when the price is paid. Nothing is put at their disposal — no principal, in money or any other form — and there is no repayment obligation. Against the trade debtors a debt relationship does arise, but a trade receivable is not a loan agreement or anything comparable, and where it is paid within 90 days — as these were — no interest is charged. No interest income either way.

ajiho commentary

The pricing formula was not the transaction

The fee was decomposed into a service margin and a money-market reference rate — how a well-built factoring fee should be constructed, separating the service from the time value of money and pricing each. The taxpayer then argued that the second component was what it had been named. The Court went first to the legal relationship — no loan, on either leg — and only then asked whether an economic reading of interest could rescue the claim. It could not. The taxpayer's own material told against it too: the IMF paper it relied on described factoring income as a fee and expressly not as interest, and its own accounts booked the return the same way. A label inside a formula does not create the instrument it borrows its name from — and where a taxpayer's tax characterisation departs from its characterisation everywhere else, everywhere else tends to win.

The discount-to-par question is the one to watch

The most interesting passage is one the Court nearly decided the other way. In an example put twice to the Eerste Kamer, the State Secretary took the view that where a fixed-coupon bond issued at par is later sold below par because market rates have risen, the accretion to nominal is interest income for the buyer — though not accretion from improved creditworthiness. The Court doubted that proposition even on an economic reading of interest, then declined to extend it, decisively because no fixed-rate loan agreement or comparable had been taken over. The line is drawn at a taken-over fixed-rate instrument — and the Court withheld endorsement even on that side of it.

ATAD 1 gave less than expected

Both definitions in article 2 — borrowing costs and exceeding borrowing costs — refer back to national law, and that alone disposed of the too-narrow-implementation argument. The Court added a broader brake: interest has two sides, and debtor and creditor have opposing interests in how widely it is read, so a court should be restrained in finding a directive over- or under-implemented. Commissie tegen België was distinguished as concerning a different kind of provision: article 8(7), which the Court of Justice found mandatory, generally worded and admitting no derogation, read against objectives — double taxation among them — absent here.

The same economics, two answers

Financing a group's receivables by buying them and by lending against them are close commercial substitutes. Under article 15b they are nothing alike: a lender's yield is interest income and creates headroom, a factor's is a fee and does not. Where a Dutch entity is interest-limited that is a live structuring point, to be built into the legal form at the outset — legal form is what the Court reached first and leaned on hardest.

Whether cassation was lodged within the six weeks from 22 April 2026 is not recorded. ajiho will continue to monitor Dutch decisions on the interest limitation and receivables financing.

Case reference

[belanghebbende] B.V. v de inspecteur van de Belastingdienst, Gerechtshof 's-Hertogenbosch, Team belastingrecht, Meervoudige Belastingkamer, nummer 24/659, ECLI:NL:GHSHE:2026:1081, judgment of 22 April 2026, published 12 May 2026. Hearing 20 March 2026. On appeal from Rechtbank Zeeland-West-Brabant, 11 April 2024, BRE 23/4048, ECLI:NL:RBZWB:2024:2388, confirmed. Bench: T.A. Gladpootjes presiding, with J.M. van der Vegt and C.W.M.M. Verkoijen; registrar F. Marcolina. Corporate income tax 2019. Cassation to the Hoge Raad lay within six weeks of dispatch. The judgment is anonymised. Primary source: official judgment.

The factoring fee formula is reproduced in the published text as an image and is not recoverable; only the components named in the footnotes can be cited — the Applicable Margin, being a fee for the factoring services plus a profit mark-up, and the Reference Rate, being the three-month base rate for the relevant currency. The taxpayer, its place of establishment and the group are anonymised, and the judgment is silent on whether cassation has been lodged.