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Contribution of shares to a holding company, followed by a capital reduction? Tax abuse!

A tax-friendly way to remove reserves from your company is to sell your shares to a (holding) company that you control, which can then pay these reserves to itself tax-free and then pay the sales price. Years of criticism of this method by the tax authorities has led to a variant that was recently assessed by the Courts of Appeal of Antwerp and Liège.

Chambers global practice guides – Corporate tax 2025

De Langhe Attorneys has contributed to Corporate Tax (Law and Practice) 2025, 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, partner, co-authored the Law and Practice – Belgian chapter. We would also like to acknowledge the contribution of Mathias De Schrijver, junior associate. We are proud to have documented an invaluable piece of the legal landscape in motion.

Federal coalition agreement: the 4-course meal of 2025, with a pinch of tax

With the federal government having finally set up its new kitchen, its chef is now busy crafting a new menu. While the full dinner is still being prepared, we can already serve up some key fiscal highlights.

Abolition of automatic 10% tax increase in practice: historical recovery possible?

In tax recovery files, the tax authorities have for years generally imposed a tax increase of (at least) 10%. The Minister of Finance has stopped this by deciding that a 10% tax increase will no longer be automatically applied in a case of a first offence committed in good faith. The Minister bases this on a recent judgment of the Constitutional Court.

Private capital gains on shares only taxable on net amount

Private capital gains on shares are taxable when realised outside the normal management of private assets. In this case, these capital gains are taxed at a rate of 33% (plus municipal taxes).

The Constitutional Court has put an end to the debate on whether these capital gains are taxable only on their net or gross amount.

From reducing inheritance tax to donating family companies: what is the new Flemish government changing about the tax ‘game rules’?

With the arrival of the new Flemish Government, among other things, the cards of inheritance tax, donation and registration duties are being reshuffled, with some notable changes in play. We outline the most important changes below.

Book 7, preview of a new special contract law

On 16 April 2024, the legislative proposal regarding Book 7 “Special Contracts” of the new Civil Code was submitted in the Belgian Parliament. After general contract law, the law on so-called “special” or “named” contracts (sale, contracting, lease, etc.) will also be modernised. In this article, we give a preview of some of the proposed novelties in the field of sale and lease. As this is only a legislative proposal, it is of course possible that the final legislative text may still differ from what we explain below.

Links of success: intermediaries in trade (part 2)

In a previous edition, we discussed the potential added value for a producer of setting up a distribution network. We gave an overview of the different actors in the distribution process and some legal concerns. In this article, we address one of the main costs involved: the legal protection enjoyed by certain intermediaries in the event of the termination of commercial cooperation.

Be careful with your holiday photos! Do’s and don’ts during a fiscal visitation regarding company mobile phones and company computers

In many cases, company mobile phones and company computers are also used for private purposes. What are the consequences if the tax authorities wish to investigate your mobile phone or computer as part of a fiscal visitation? Does its private use result in the impossibility of a fiscal visitation?

Distribution of real estate via dividend payment in kind has recently become possible without application of the sales tax!

Until recently, the Flemish Tax Administration argued that the distribution of real estate from a company was subject to the sales tax (12%) when this distribution was charged to the available reserves. Indeed, it argued that this distribution constituted a distribution of dividends in kind and therefore a transfer for consideration. Recently, the Flemish Tax Administration has completely changed its approach, allowing this distribution to be made in certain cases in a much more tax-efficient way, i.e. without application of the sales tax.

Clarification on estate planning with life insurance contracts and partnerships

In the context of estate planning, accumulated assets can be contributed to a partnership and then reinvested in a life insurance contract. The threat of inheritance tax when the life insurance contract is paid out, casted a shadow over this practice for a while. A recent decision removes these concerns, once more clearing the air for this strategy.

Links of success: intermediaries in trade (part 1)

As a manufacturer, you want to get your products to the end customer as efficiently as possible. To this end, it may be interesting to work with intermediaries. The choice of distribution regime depends on both economic and legal considerations. In this article, we give an overview of the different actors in the distribution process and some legal points of interest.

Tax abuse: one for all, all for one!

Tax abuse often results from a chain of legal acts. Recently, the Court of Cassation was asked whether it is a requirement that the taxpayer formally participates in each part of this chain.

Chambers global practice guides – Corporate tax 2024

De Langhe Attorneys has contributed to Corporate Tax (Law and Practice) 2024, 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 like to acknowledge the contribution of Mathias De Schrijver, junior associate. We are proud to have documented an invaluable piece of the legal landscape in motion.

The recent tax increases for NPOs, foundations, long lease and building structures explained

By the end of 2024, a law was adopted reforming the patrimony tax. In addition, the rate for registering the grant or transfer of a building or long lease right was also increased.

Mandatory amendment of your company’s articles of association: help I missed the deadline!

On 1th January 2024, the deadline to comply your company’s articles with the provisions of the new Companies and Associations Code (“CAC”, in force since 1th May 2019) expired. Does this mean that your company will have to pay a fine? Could your company be dissolved? You can read about it below.

Taxable ‘abnormal’ capital gains on shares are taxable on net basis, according to the Constitutional Court

In a recent judgement, the Constitutional Court ruled that there is discrimination between the way ‘abnormal’ capital gains on shares and ‘abnormal’ occasional profits or gains (other than those obtained from financial products) are taxed. The former are taxed on a gross basis while the latter are taxed on a net basis. The Constitutional Court held that this difference between the two categories of taxpayers is not reasonably justified. Therefore, this case law carries important practical implications.

The European Restructuring Directive 2019: Redrawing the Belgian insolvency landscape again

Since September 1th 2023, the new insolvency rules apply. These new insolvency rules follow the implementation of the European Restructuring Directive 2019/1023 of the European Parliament and the Council. However, the Belgian legislature did not limit itself to implementation. In addition, a number of profound changes were made. As a result, the Belgian insolvency landscape is being thoroughly redrawn again, after a significant change already occurred in 2018. Below we explain the main changes that affect the business owner, as creditor or debtor.

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.