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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.

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 estat…

2 December 2022

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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.

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 att…

25 November 2022

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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.

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 …

18 November 2022

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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.

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 t…

26 September 2022

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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…

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 Co…

2 September 2022

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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?

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 r…

3 August 2022

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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.

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 rul…

1 July 2022

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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.

Good agreements make good friends. Accordingly, when outsourcing certain activities, it is important to draw up a well-drafted contract between both companies. …

19 May 2022

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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.

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 ch…

19 May 2022

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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.

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 fo…

11 April 2022

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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 […]

De Langhe Advocaten has contributed to Corporate Tax (Law and Practice) 2022, published by Chambers Global Practice Guides. The Corporate Tax Practice Guid…

11 April 2022

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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.

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…

30 March 2022

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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.

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 …

2 March 2022

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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.

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…

17 February 2022

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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.

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 alrea…

19 January 2022

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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.

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 t…

4 January 2022

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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.

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 …

27 November 2021

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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.

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 w…

15 October 2021

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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.

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 …

15 October 2021

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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.

In addition to various supportive measures in the context of the corona-pandemic, companies also benefitted from legal protection against bankruptcy until 31 Ja…

23 June 2021

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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.

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…

4 June 2021

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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.

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…

21 April 2021

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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 […]

De Langhe Advocaten has contributed to Corporate Tax (Law and Practice) 2021, published by Chambers Global Practice Guides. The Corporate Tax Practice Guid…

15 April 2021

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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 Belgian Code of Companies and Associations (BCCA) provides shareholders with the right to ask questions. This right of inquiry stems from the duty a governi…

7 April 2021

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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 […]

De Langhe attorneys was the exclusive contributor/expert for the Belgian tax chapter within the 5th edition of The Legal 500: Tax Country Co…

1 March 2021

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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.

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 …

24 February 2021

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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.

Setting the date on which transactions or other activities take effect for accounting purposes is an important aspect of company restructuring. This is the dat…

22 February 2021

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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.

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 pos…

15 February 2021

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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.

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 p…

14 December 2020

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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.

In a recently published prior decision the Flemish tax authority (VLABEL) expressed its opinion on excessive retention of control in the family partnership. Art…

9 December 2020

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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.

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…

14 October 2020

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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.

Family businesses and shares of family businesses can be transferred or inherited at an advantageous rate in the registration and inheritance tax. In the Flemis…

2 June 2020

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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.

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 relat…

1 April 2020

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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.

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 …

24 February 2020

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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 – […]

Global law firm De Langhe Advocaten has contributed to Corporate Tax (Law and Practice) 2020, published by Chambers Global Practice Guides. The Corporate T…

21 February 2020

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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.

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.…

24 December 2019

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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.

The new Flemish government announced in its coalition agreement that the Flemish tax system will be thoroughly reformed. We explain the most striking reforms: t…

5 December 2019

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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.

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 consoli…

31 October 2019

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Further “extension” with respect to the registration formalities in the UBO-register

The Belgian Federal Public Service Finance has decided not to impose any fines, until 31 December 2019, to the governing corporate body for the lack of, faulty or incomplete registration in the UBO-register before the deadline of 30 September 2019.

The Belgian Federal Public Service Finance has decided not to impose any fines, until 31 December 2019, to the governing corporate body for the lack of, faulty …

2 October 2019

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Reform of the Belgian Civil Code

On 14 May 2019 the Act was published that introduced the framework of a new Belgian Civil Code.

On 14 May 2019 the Act was published that introduced the framework of a new Belgian Civil Code.

2 August 2019

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Retroactive abolition of the minimum remuneration requirement

In our newsletter of 24 October 2018 we informed you of the latest state of affairs regarding the minimum remuneration requirement introduced by the Belgian law of 25 December 2017 and amended by the remedial legislation of 30 July 2018.

In our newsletter of 24 October 2018 we informed you of the latest state of affairs regarding the minimum remuneration requirement introduced by the Belgian law…

10 June 2019

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VAT on real estate leasing: What about the refund of historical VAT?

In previous editions of this magazine we presented an overview of the changes envisaged by the legislator with regard to the optional VAT on real estate leasing. This legislation has been in force since 1 January 2019 and this option can now be implemented. However, the tax authorities were quick to express their own vision regarding the VAT deduction and refund of historical VAT under this legislation.

In previous editions of this magazine we presented an overview of the changes envisaged by the legislator with regard to the optional VAT on real estate leasing…

19 April 2019

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The New Belgian Code on Companies and Associations finally approved

It was all hanging in the balance until the very end, but on 28 February 2019 the new Code on Companies and Associations (abbreviated in Dutch as “WVV”) was finally approved by the Belgian Chamber of Representatives. The new code means a thorough reform, simplification and modernisation of the existing company law.

It was all hanging in the balance until the very end, but on 28 February 2019 the new Code on Companies and Associations (abbreviated in Dutch as “WVV”) was…

19 April 2019

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The General Court of the European Union rules that Belgian Excess Profit Ruling Scheme is not prohibited state aid

On 14 February 2019, the Court of Justice of the European Union took a decision on the Belgian scheme of Excess Profit Rulings Scheme (see: http://curia.europa.eu/juris/liste.jsf?num=T-131/16). The court annulled the decision of the European Commission that the scheme was considered prohibited state aid (Decision 2016/1699 of 11 January 2016).

On 14 February 2019, the Court of Justice of the European Union took a decision on the Belgian scheme of Excess Profit Rulings Scheme (see: http://curia.europa.…

22 March 2019

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Guarantees and sureties… small print, big consequences

Despite the fact that interest rates have plummeted in recent years, it is still not easy to obtain financing for your business. In the event that your company cannot provide any mortgage or pledge in the form of real estate or substantial claims, it is possible that the bank will ask you, as shareholder/business manager, to provide a surety for the obligations of your company.

Despite the fact that interest rates have plummeted in recent years, it is still not easy to obtain financing for your business. In the event that your company …

4 March 2019

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Renovation of the Belgian property co-ownership law

On 1 January 2019, a certain number of new rules regarding the Belgian legislation on apartment co-ownership came into force. The so-called Apartment Act has been modified for the 4th time since its introduction in 1924. The most recent revision mainly focuses on relaxing the existing regulations so that renovations can be carried out more efficiently and in order to resolve disagreements between the co-owners. An overview of the “foundations” for the new legislation

On 1 January 2019, a certain number of new rules regarding the Belgian legislation on apartment co-ownership came into force. The so-called Apartment Act has b…

28 January 2019

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