News

Application of the notorious tax deduction and compensation ban: can courts temper the consequences?

Since the implementation of the former article 207, paragraph 7 ITC, taxpayers are systematically confronted with a deduction and compensation ban when the Administration issues an ex officio assessment or sends a notice of amendment imposing a tax increase of at least 10%. However, its strict application often leads to disproportionate results. With the first judicial decisions appearing, it is becoming clear that the Administration is sometimes using a sledgehammer to crack a nut.

Taking matters into your own hands in contract disputes?

The new Belgian law of obligations offers several possibilities to enforce contract claims more efficiently. Whereas previously one often still had to go to court to have shortcomings of a co-contractor sanctioned, for new contracts concluded after 1 January 2023 one will be able to do this autonomously. In this article, we provide an overview of the possibilities to do so and of their conditions.

Withdrawal from undivided ownership shareholder-corporation: not always does the distribution right apply!

For years, the acquisition of a real estate property in undivided ownership by a shareholder with its company has been a popular tax optimisation technique. On a later withdrawal from undivided ownership, the shareholder can benefit from the distribution right at a rate of 2,5%. Recently, the Court of Cassation stated that sometimes the 12% real estate transfer tax still applies.

Potential impact of changed circumstances on contracts

As already mentioned in the previous edition, the introduction of the doctrine of change of circumstances or hardship is one of the most notable innovations in contract law. Changed circumstances can now have a significant impact on the contracts one concludes after 1 January 2023. In this article, we examine the conditions and practical application thereof.

Revocability of donations between spouses: tax abuse?

A donation between spouses is a popular component when setting up estate planning. In particular, the revocable nature of such donations creates a number of opportunities. Although the exercise of a right of withdrawal has always been accepted for tax purposes in the past, it appears that this practice is increasingly under attack.

Book 5, your new travel guide through the contractual landscape

On 1 January 2023, the new contract law came into force. Although it mainly confirms or rephrases existing principles, it also introduces some novelties. In this article, we give a foretaste of the most relevant topics related to the conclusion, performance and termination of contracts.

Cassation gives the tax authorities ammunition regarding the 6% issue on renovations

Certain works in immovable property, such as renovations, can be invoiced at a reduced VAT rate of 6% instead of the general VAT rate of 21% for new or thoroughly renovated constructions. On several occasions in the past, discussions have flared up concerning the boundary between a new construction and a renovation. Recently, the Court of Cassation ruled unambiguously on this distinction. This time, the Court applied a stricter interpretation.

The conflict of interest procedure: more than a mere formality

When a conflict of interest is imminent between the company and one or more of its directors, a statutory procedure must be complied with for the limited liability companies (“NV” and “BV”), and the cooperative company (“CV”). In practice, however, this often gives rise to an array of questions. Is there really a conflict of interest? Who is authorized to take the decision? Hereinafter we provide some brief answers to those questions.

Changes to the tax exemption regime of savings accounts on the horizon?

An advice was recently requested by the minister of Finance from the National Bank of Belgium and the Financial Services and Markets Authority (‘FSMA’) on a possible change to the tax exemption regime for savings accounts. With the obtained advice, the minister hopes to put an appropriate end to the exemption regime for interest on savings deposits, which has been found discriminatory by Europe. In principle, this exemption applies to both domestic and foreign savings deposits. However, in practice, the exemption is being systematically refused for foreign savings deposits, as it is more difficult for them to meet the criteria imposed for the exemption.

Tax authorities must at all times respect the lawyer’s professional confidentiality

In a case that was recently settled by the Antwerp Court of Appeal, was ruled that the tax authorities may not use confidential correspondence between the taxpayer and its lawyer, which is obtained as a result of tax visitation, in proceedings against the taxpayer.

The electronic signature in trade relations

The increasing importance of digital communication means that an electronic signature (“e-signature”) is being used more and more frequently in commercial relations. At European and Belgian level, the legislator has established some types of e-signatures and the legal consequences associated with them. This article briefly explains the different types and some points of interest.

Asset deal vs. share deal with real estate promoters: another recent favorable judgment for taxpayers

When a real estate promoter realizes a project, the capital gain will be taxable in direct taxes (asset deal). Since such a project qualifies as new real estate, VAT is also due. A solution to escape this heavy tax burden could be to found a project company in order to build and sell the intended project.

Exemption from withholding tax on dividends: who is UBO?

The Court of Justice has ruled in its jurisprudence that the exemption from withholding tax on dividends only takes effect on condition that the dividend is attributed to the parent company that qualifies as the ‘Ultimate Beneficial Owner’ (hereinafter: UBO). This jurisprudence is now also seeping through the Ruling Commission’s rulings, where importance is given to the decision-making process on the part of the parent company with regard to the dividends received.

Transfer of real estate in liquidations: extended application of the general fixed right possible?

The transfer of real estate from a company is in principle subject to the real estate transfer tax (12%). A well-known exception is the ‘waiting regime’, where only the general fixed right (50 EUR) is levied. In recent years, however, VLABEL has not failed to spout fog around the interpretation of this exception. Off and on, it increased legal tax uncertainty on the basis of decisions with little solid legal foundation. Recently, VLABEL did offer some more perspective to taxpayers.

Retroactivity for restructurings: tax retroactivity longer than seven months possible?

In a previous newsletter, we already mentioned that the effective date of a restructuring (e.g. demerger or merger) can be set before the date of the decision to restructure itself. Due to the introduction of the new company law, this retroactivity can be up to one year on the accounting level, if the annual accounts of the previous financial year have already been approved. If, on the other hand, the annual accounts for the previous financial year have not been approved yet, retroactive accounting is possible up to the first day of this previous financial year. An answer given by the Minister of Finance to a parliamentary question on this subject does not provide sufficient clarity.

Strengthened vision on VVPRbis regime brings undesirable consequences

The conditions of application of the VVPRbis regime were amended at the beginning of this year. Since the introduction of the new Companies and Associations Code (hereinafter: CAC), there is no longer a statutory minimum capital requirement for the limited liability company. Several limited liability companies have therefore already reduced their capital. However, the legislator stipulates a number of strict conditions that must be met in order to be able to make use of this favorable regime. These conditions are not a walk through the park for every limited liability company. That is why the legislator has provided a transitional measure, although this also causes concerns…

New preliminary draft law to combat tax fraud: broader powers for tax authorities in the offing

A while ago, the Minister of Finance announced in the media that an action plan aimed at combating tax fraud was being finalized. This should generate annual revenues of one billion euros for the government from 2024 onwards. In the meantime, this action plan has already been transformed into a preliminary draft law. This grants even more powers to the tax authorities, but what about the protection of the taxpayers?

Transfer of real estate without real estate transfer tax: ruling commission accepts quick conversion into a partnership

The transfer of real estate from a company is usually accompanied by a high tax burden due to the 12% sales tax. However, partnerships have exceptions. The ruling commission had to decide on a case in which a capital company wanted to transform itself into a partnership in order to subsequently release a property with the application of a more favourable regime.

Contracts between companies for outsourcing require mutual respect

Good agreements make good friends. Accordingly, when outsourcing certain activities, it is important to draw up a well-drafted contract between both companies. The expertise of specialized lawyers is often crucial in drafting such an agreement. Frank De Langhe, Sara Burm and Bruno Thoen of De Langhe Attorneys provide a number of useful points of attention.

Contractual protection against price increases

The covid-pandemic and the war in Ukraine are causing a scarcity of raw materials and resources and are having a disruptive effect on the global distribution chain. These exceptional market conditions confront companies with huge price increases. A price revision clause can adjust existing contracts, but must comply with a number of rules.

Escaping criminal conviction: delegation of powers?

Having an executive role in a company means, besides operational challenges, a lot of responsibility. As an executive, you can thus be held personally liable for environmental crimes, accidents at work, etc. Under certain circumstances, in addition to a possible obligation to pay compensation, you even risk being sentenced to criminal penalties. In this article, we outline several precautionary measures to avoid such situations.

Chambers global practice guides – Corporate tax 2022

De Langhe Advocaten has contributed to Corporate Tax (Law and Practice) 2022, published by Chambers Global Practice Guides. The Corporate Tax Practice Guide provides expert legal commentary on key issues for businesses. Frank De Langhe, managing partner and Head of Tax and Evert Moonen, associate, co-authored the Law and Practice – Belgian chapter.  We would also […]

Extended investigation period in fraud cases: flexibilisation by the tax authorities in the offing?

According to a recently submitted legislative proposal, the position of the tax authorities in fraud cases will be strengthened in the context of detecting acts that indicate fraud. The question arises as to what consequences this will have for the taxpayer.

Main changes in the new Franco-Belgian Double Taxation Convention

At the end of 2021, a new double taxation convention was concluded between Belgium and France. This new conventions’ entry into force is expected in 2023. We explain the most important future changes.

Use and limits of an exemption clause

For you, as a company, customer service is essential. Of course, a 100% optimal service is not always obvious and the customer can hold you liable if you do not (completely) fulfil your obligations. In order to limit your liability to a reasonable level (and sometimes even to exclude it), you can include an exemption clause in your contracts. However, this is subject to legal limits, some of which we will discuss below.

The Court of Cassation confirms: no retroactive application of the general anti-abuse provision

In the past, the tax authorities have attempted several times to invoke the general anti-abuse provision for constructions of which the alleged legal acts already took place before its entry into force in 2012. This approach was criticized in the legal doctrine and jurisprudence. The Courts of Appeal in Ghent and Antwerp have already repeatedly ruled in favor of the taxpayer in this regard. Afterwards, the tax authorities persisted and went to the Court of Cassation, where the Court has definitively settled this dispute.

New legal maximum term of 60 days for payment of B2B invoices

It is crucial for the financial health of any company to possess the necessary liquidity. The applicable payment term in B2B transactions plays a key role in this regard. The recent Act of 14 August 2021 aims to further improve payment behaviour between companies.

No tax abuse when donating movable property after a release from the marital property

In a recent judgement of the Court of Appeal at Ghent VLABEL has been found unsuccessful in its submissions twice. The Court ruled that the combined release of movable property from the marital property followed by a donation, accompanied by payment of gift taxes, does not qualify as tax abuse.

The battle of forms: how to enforce your general terms and conditions?

Most companies have a set of general terms and conditions to fall back on in their business relations. Does this mean that, for example, if there are problems with payment or delivery, everything is also regulated according to these own general terms and conditions? In commercial relationships, general terms and conditions are often sent from both sides; which conditions then apply? In this article we will provide you with a number of main points.

Constitutional Court ends years of discrimination: now also foreign inheritance tax settlement on movable property possible

Upon the death of a Belgian resident, his worldwide assets must be declared for the calculation of inheritance tax. This can lead to double taxation if part of the estate is located abroad. However, the law provides for inheritance tax paid abroad to be credited against inheritance tax due in Belgium, but only for immovable property. The lack of a similar regulation for movable property is discriminatory according to the Constitutional Court. VLABEL has recently agreed with this view.

The “preliminary agreement” and other (temporary) reforms of insolvency law: an effective vaccine in times of economic decline?

In addition to various supportive measures in the context of the corona-pandemic, companies also benefitted from legal protection against bankruptcy until 31 January 2021. With the act of 11 March 2021, the legislator changes tack by making the procedure for judicial reorganization more flexible. We summarize the most important changes for you.

Withholding tax on French dividends: tax authorities accept the opinion of the Court of Cassation (after all)

Income from foreign movable property received by a Belgian taxpayer is (usually) subject to withholding tax in the country of origin. In Belgium, this income is also taxed as movable income. This leads to double taxation.

Until we meet again: the fiscal impact of Brexit

As of 1 January 2021, the United Kingdom (hereafter: UK) leaves the customs union and single market behind . Henceforth the UK is effectively considered a third country and can no longer invoke the European freedoms and directives. In order to minimize any unwanted consequences, a trade and cooperation agreement was concluded between the EU and the UK at the last minute. In addition, the question arises as to the consequences in the areas of corporate taxation and VAT.

Chambers global practice guides – Corporate tax 2021

De Langhe Advocaten has contributed to Corporate Tax (Law and Practice) 2021, published by Chambers Global Practice Guides. The Corporate Tax Practice Guide provides expert legal commentary on key issues for businesses. Frank De Langhe, managing partner and Head of Tax and Evert Moonen, associate, co-authored the Law and Practice – Belgian chapter.  We would also […]

How far does the shareholders’ right to ask questions reach?

The Belgian Code of Companies and Associations (BCCA) provides shareholders with the right to ask questions. This right of inquiry stems from the duty a governing board has towards its shareholders. The question arises how far this shareholders’ right to ask questions extends.

The Legal 500: Tax Country Comparative Guide

De Langhe attorneys was the exclusive contributor/expert for the Belgian tax chapter within the 5th edition of The Legal 500: Tax Country Comparative Guide.  Click here to view our chapter. The guide is visible to the 2.9 million unique visitors to the Legal 500 website every year made up of Corporate Counsel, GC’s and Senior Executives. The readership use the guide […]

Assessment of one year Code of Companies and Associations

The most important changes of 2020

The Belgian Code of Companies and Associations (BCCA) entered into force on 1 May 2019 for newly incorporated companies and on 1 January 2020 for existing – and therefore all – companies. At the turn of the year, De Langhe Attorneys took stock of one year of BCCA with a brief overview of the most important changes since its entry into force.

Company reorganisation: one year accounting retroactivity also possible for tax purposes

Setting the date on which transactions or other activities take effect for accounting purposes is an important aspect of company restructuring. This is the date on which the transactions of the acquired company are allocated to the acquiring company for accounting purposes. Under certain conditions, this date may also be retroactive, i.e. before the date of the restructuring. Since the introduction of the Belgian Companies and Associations Code (hereinafter CAC), this retroactivity may even extend up to one year. In the meantime, more and more voices are also urging acceptance of such a period for tax matters.

The saga of the split registration 2.0

A previous newsletter (https://de-langhe.be/de-saga-van-de-gesplitste-inwezen/) already reported on the nullification by the Belgian Council of State of the position of the Flemish Tax Authorities (hereinafter Vlabel) with regard to split registration (also known as split purchase). At that time, there were already warnings about a legislative intervention requiring prior registration of a gift before proceeding with a split purchase (and thus eliminating the tax advantage of the split purchase). Although it has not come to that, Vlabel has published a new position on the split purchase, more than 2 years after the Belgian Council of State judgement.

Full deduction of VAT in publicity and brokerage fees is possible for property developers

In a recent decision of 1 October 2020 the Belgian Court of Justice has decided on the deduction of VAT in publicity, administrative and brokerage fees on the part of property developers in case of a split sale.

The family partnership: VLABEL defines the boundaries of control retention

In a recently published prior decision the Flemish tax authority (VLABEL) expressed its opinion on excessive retention of control in the family partnership. Articles of association should really be drawn up with caution.

Donations via foreign notary also taxed: “Cheese route” loophole closed

Until now, registration of donation deeds of movable property drawn up before foreign notaries was optional in Belgium. In the context of succession planning, a Dutch notary was therefore often called upon to organise a donation (the “cheese route”). In this case, no registration fees are due. However, a draft bill of law was recently submitted in which this registration will be mandatory in Belgium, with all the associated tax consequences.

Belgian Supreme Court (“Hof Van Cassatie”) 25 June 2020: A (new) legal update in non-compete clauses

A frequently asked and recurring question in the business world: are a seller of shares, a director, a former director and a shareholder of a company bound by a non-compete obligation?

Preferential regime for transfer / inheritance of family businesses: positive news for real estate participations

Family businesses and shares of family businesses can be transferred or inherited at an advantageous rate in the registration and inheritance tax. In the Flemish Region this rate is 0% for gifts, and 3% or 7% for inheritances. One of the conditions applicable to companies regards the exercise of a genuine economic activity. Even though the Flemish tax authority (VLABEL) interprets them strictly, a recent decision somehow nuances this in the interest of companies with important real estate participations.

Key practical aspects of the new property law

On 30 January 2020, the bill on the new Book 3 “Property” of the Belgian Civil Code was approved. It involves profound changes, the most striking of which relate to the real estate sector. In this article we set out the practical implications of the most important of these changes. The bill also contains new provisions concerning movable property, intellectual property rights, animals, etc., which will not be discussed in this article.

The new Belgian Code of Companies and Associations: 7 practical novelties

As from 1 January 2020, the mandatory provisions and also – to the extent that nothing is stipulated in the articles of association of the concerned company – the default rules of the new Belgian Code of Companies and Associations (hereinafter “BCC”) are fully applicable to all companies. This means that, as from 1 January 2020, you, as an entrepreneur, have to take into account a number of additional rules. In the present article, we clarify 7 practical novelties in the BCC for you.

Chambers global practice guide – Corporate tax 2020

Global law firm De Langhe Advocaten has contributed to Corporate Tax (Law and Practice) 2020, published by Chambers Global Practice Guides. The Corporate Tax Practice Guide provides expert legal commentary on key issues for businesses. Frank De Langhe, managing partner and Head of Tax;  Evert Moonen and Justine Bouckaert, associates, co-authored the Law and Practice – […]

Director’s liability: Cap possible?

The new Belgian Code of Companies and Associations (BCCA) entered into force on 1 May 2019. An important reform is the introduction of the liability limitation. Are you fully protected as a director? A brief explanation.

New Flemish government: Tax measures

The new Flemish government announced in its coalition agreement that the Flemish tax system will be thoroughly reformed. We explain the most striking reforms: those with regard to inheritance taxes and housing taxation.

Tax consolidation in Belgium – Something for you?

With the corporate tax reform (through the Act of 25 December 2017, and later amended by the repair legislation of 30 July 2018), the possibility of tax consolidation was also introduced in Belgium. From assessment year 2020 (linked to a taxable period starting no earlier than 1 January 2019), companies may apply the group contribution scheme (Articles 205/5, 185, §4, 194 septies and 198, §1, 15° Belgian Income Tax Code). In this Article we will limit ourselves to the main points of the aforementioned legislation.