advocaten - attorneys
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.
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 […]
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 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.
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.
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 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.
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.
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…
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?
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.
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.
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.
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.
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 […]
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 […]
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.
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 […]
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.
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.
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.
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 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.
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.
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?
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.
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.
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