Dutch Supreme Court: Unrealised Losses Fall Within The Loss Restriction Rules Upon A Share Transfer

On 11 September 2026, the Dutch Supreme Court rendered its long-awaited judgment on the scope of the Dutch anti-abuse rule for loss utilisation. The judgment confirms that also unrealised losses may be restricted following a substantial change in ownership. This will have particularly impact on Dutch taxpayers involved in M&A transactions, restructurings and real estate investments. 

Although the judgment provides clarity on the principal issue, it also creates significant administrative burdens and uncertainties. Taxpayers may now need to identify, value and monitor unrealised losses at the time of a qualifying ownership change, even where those losses have not yet been formally recognised for tax purposes. In addition, various technical questions with practical impact remain unresolved, which leads to uncertainty for taxpayers.