19 October 2020

Dutch STAK Foundations – An Overview

The Dutch STAK foundation can be used for a variety of both charitable and commercial purposes, including by family offices to assist with estate planning and asset protection. Although use of a STAK foundation in any structure will necessitate the obtaining of Dutch legal advice and we strongly advise taking Dutch legal advice if you are considering this as an option, this summary explains their key characteristics.

What are STAK foundations?

STAK (Stichting Administratiekkantoor) foundations (STAKs) are Dutch legal entities which have limited liability but no shareholders or share capital; in effect, a STAK owns itself. As such, their legal ownership is separated from their beneficial ownership.

How is a STAK set up?

Dutch legal advice is required to set up a STAK but essentially it’s a fairly simple process.

A STAK is incorporated once the necessary paperwork has been completed and it has been registered at the Netherlands Chamber of Commerce. To set up a STAK, its name, main activity and the names of its directors will be required. Incorporation and registration usually takes about two to three days.

Once incorporated, the STAK can purchase other companies’ shares in exchange for depositary receipts, the result of which is that the STAK holds the legal title to, and has voting rights in, the shares while the seller retains economic ownership and will be entitled to any dividends.

How is a STAK administered?

At least one director needs to be appointed who will then administer the STAK in accordance with its written terms and conditions. Directors need not be Dutch resident and can be corporates.

The relationship between the STAK and the depositary receipt holder(s) is documented in a Dutch trust conditions document.

What is a STAK’s tax position?

Simply holding investments in the Netherlands is not classified as business activity and so a STAK which just holds the shares in another company will not be subject to Dutch corporate income tax or VAT. As a tax transparent vehicle, any income or capital gains will be taxed at the beneficial owner’s level. However, it should be noted that if the STAK becomes operational, tax registration in the Netherlands will be required if annual profits are in excess of €15,000. Voluntary registration is an option if the STAK is operational but annual profits are below this level.

Asset protection

As the STAK legally owns the assets, families are able to protect their assets from any future claims made against them individually.

Estate planning

STAKs can be used for effective estate planning with, for example, children holding the beneficial rights to the assets while other family members, such as parents, or trusted third parties, retain control of the assets by being board members. It can also be an effective way of managing assets where there are a large number of beneficial owners.

The advantages of using a STAK

  • Separation of legal and beneficial ownership. This allows effective estate planning and asset protection.
  • Tax. Assuming that the STAK is simply used as a holding vehicle and there are no other Dutch connections within the structure, no Dutch corporate income tax or VAT will arise.
  • Anonymity. Only the board of directors of a STAK requires disclosure, although the Dutch Central Bank will need to be notified of the underlying parties and the source of funds. Until recently, there was no need to register the beneficial owner(s) of a STAK but with effect from 27 September 2002, a STAK’s “ultimate beneficial owner(s)” (UBOs) must be included in the UBO register. A person is classified as a UBO if they hold more than 25% of either the voting rights or shares or make company decisions. There is no obligation to make the trust conditions or the STAK's financial accounts public, unless the STAK’s annual turnover for two consecutive years exceeds €6 million.
  • Simple. A STAK is simple and fairly quick to set up and has limited filing and administrative requirements.

Craig Thompson is the Head of Forsters' Corporate team and Hugo Davis is a Trainee Solicitor.

Disclaimer

This note reflects our opinion and views as of 16 October 2020 and is a general summary of the legal position as we understand it. It does not constitute legal advice and local law advice should be obtained before proceeding.

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