When the Netherlands introduced its new entity classification rules as of 1 January 2025, the practical discussion for many fund structures quickly converged on one theme: partnership-type vehicles are generally transparent, unless they qualify as (or are deemed equivalent to) an Dutch Fund for Joint Account (fonds voor gemene rekening: FGR) - in which case they can become non-transparent and potentially fall within Dutch corporate income tax at fund level, which may also allow the fund (as a separate taxpayer) to access Dutch tax treaty benefits.

In our earlier publication, The 2025 Dutch tax classification of the Brazilian FIP, we explored that question for the Brazilian fundo de investimento em participações (FIP). The post-2025 classification still starts from a simple premise: FIPs are, in principle, transparent — but if the vehicle qualifies as (or is equivalent to) an FGR, it is treated as non-transparent.

Now, a little more than a year later, two late-2025 developments materially affect how that FIP analysis is performed in practice:

1. A revised Dutch Fund Decree, published on 2 December 2025; and

2. A Draft act on the new FGR definition and transitional regime published for consultation, published on 15 December 2025.

Below, we summarise what those updates mean for Brazilian FIPs and where we see the discussion going next.

What changed in late 2025?

First, the revised Fund Decree puts more weight on the qualification as an AIF or UCITS within the meaning of the Dutch Act on the Financial Supervision (Wet op het financieel toezicht, AFS). The decree now makes clear that regulatory registration or licensing (including use of an exemption) functions as key evidence for meeting that gateway. For EU funds, comparable registration/licensing in another Member State can serve the same evidentiary role. In practice, this means that the FGR analysis increasingly starts with a very concrete question: what regulatory “proof points” exist that the fund falls within the AIF/UCITS perimeter? For non-EU funds such as Brazilian FIPs, that evidentiary route may be less straightforward, which can influence the likelihood of an FGR outcome in practice.

Second, the Dutch Fund Decree tightens and operationalises the “tradeability” test - and gives a clearer route to a redemption-fund outcome. Participation rights must be tradeable to qualify as an FGR. If units can only be transferred back to the fund itself (a “Redemption Fund”), they are not tradeable, and the vehicle should not qualify as an FGR. Importantly, the Decree emphasises that the fund documentation must explicitly reflect the transfer/redemption mechanics, and it clarifies that certain transfers (such as inheritance, universal succession and marital division) can be disregarded for this assessment. This is particularly relevant for FIPs, where quota transfer provisions (and secondaries mechanics) vary widely.

Third, the Dutch Fund Decree adds tangible guidance on what still counts as “normal” portfolio management. While the investing-versus-business assessment remains fact-driven, the decree provides clearer guardrails in a few areas that often come up in fund structures, including:

• Investing through a tax-transparent limited partnership that operates a business does not automatically mean the fund itself is conducting a business; and

• For loan strategies, the decree introduces a set of safe-harbour-style conditions under which lending is treated as normal portfolio investing (with strict limits on concentration, risk profile, leverage and fees).

For Brazilian FIPs, these clarifications don’t “solve” the portfolio-management question, but they do make it easier to frame the analysis around concrete indicators - which matters because many FIPs have a more active, value-adding profile than conventional passive investment funds.

The consultation draft: A potential opt-out from 2027 onwards

Alongside the updated Dutch Fund Decree, the consultation draft published in December 2025 signals that the legislator is looking for ways to reduce unintended fund-level tax outcomes under the post-2025 regime. The most notable proposal is an opt-out regime, which (in broad terms) would allow certain funds that would otherwise qualify as an (non-transparent) FGR to request transparent treatment - subject to conditions, including:

• A maximum of 20 ultimate participants (tested on a look-through basis);

• An information obligation enabling taxation at participant level; and

• A one-time election, with loss of the opt-out if conditions are breached.

If enacted broadly as proposed, this could become highly relevant for more closely held fund structures - but it is important to note that the expected effective date is no earlier than 1 January 2027, so it does not remove the need to assess FIPs under the current 2025 framework for 2026.

What this means for Brazilian FIPs in 2026

In short, the late-2025 developments make the Dutch analysis less theoretical and more document-and-evidence driven. For most FIPs, the practical assessment will revolve around three concrete questions:

1. Can the FIP be positioned within (or outside) the AFS AIF/UCITS gateway, and what financial regulatory evidence supports that;

2. Do the quota transfer provisions lead to “tradeable” units or do they functionally resemble a redemption fund; and

3. Do the fund’s governance and activities align with normal portfolio management, or do they cross into active, value-adding conduct in Dutch terms?

For Brazilian FIPs, this means that classification outcomes will increasingly depend on (i) how the AFS “gateway” can be substantiated, (ii) how quota transfer mechanics are drafted and applied in practice, and (iii) whether the fund’s activities can still be framed as normal portfolio management. 

We expect further developments as the legislative process continues towards a potential 1 January 2027 reform. In the meantime, FIP sponsors and investors may wish to revisit their Dutch classification position - particularly where treaty access, withholding tax positions or investor reporting depend on the outcome.