21 April 2017

Exceptions for the BVBA

For the BVBA, however, the law stipulates two exceptional cases. The first exception is the situation where an asset retirement takes place as a result of a capital reduction or the liquidation of a company, with the fixed asset being handed over to all partners together.

The general fixed tax of 50 euros is due in this case. The partners acquire the fixed asset in proportion to their holding. The final registration tax due can be determined according to the subsequent legal procedure. For example, if one of the partners takes over the fixed asset from the others, the distribution tax of 2.5% will apply. 

The second exception is the situation where the acquiring partner contributed the fixed asset to the company himself or can prove that he was already a partner at the time when the BVBA acquired the fixed asset with payment of the 10% sales tax.

In such cases, the final acquisition will be taxed privately according to its nature as defined by ordinary law, and hence not necessarily with the application of the 10% sales tax, but with the fixed tax of 50 euros or the distribution tax of 2.5%. 

Transfer for valuable consideration

VLABEL states that the retirement of a fixed asset by means of a dividend payment constitutes a transfer for valuable consideration and is therefore subject to sales tax. 

VLABEL takes the position here that from the partners’ point of view, a dividend is an acquisition for valuable consideration, because it is an acquisition governed by the partnership contract, which in itself is a contract for valuable consideration.

So even if the acquirer is a partner and was already a partner when the property was acquired by the BVBA, the sales tax is still due because the transfer of a fixed asset from the company to the partners by means of a dividend payment in kind is a transfer of a fixed asset for valuable consideration. 

Dividend payment

For the application of the exceptional cases, the ordinary law nature of the acquisition must be taken into account. In the case of dividend payments, the ordinary law is company law.

A dividend payment is viewed in jurisprudence as a form of income or revenue arising from the invested capital. A dividend distribution is therefore different from, say, a contribution of capital to the company, which constitutes a legal action for valuable consideration, as the contributor receives something in return: shares are allocated to him in exchange for the contribution. In the case of a dividend payment, nothing is received directly in return from the partner. 

Conclusion 

Strong criticism has therefore been made of VLABEL’s reasoning that, as a partnership contract is a legal transaction for valuable consideration, a dividend payment in implementation of that contract is therefore a transaction for valuable consideration. In its opinion VLABEL only discusses the BVBA, but it is possible that it will also extend this reasoning to the other forms of partnership. As far as we know, there are no plans at present concerning the exceptional cases mentioned above, namely the capital reduction and liquidation. 

Tax

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