1 2012 newsletter no 3 newsletter Higher division levy of 2.5% has become fact FAQ: Recharging costs: where to start? Certified auditors propose widening their assignments PAGE 4 PAGE 8 PAGE 16 BDO Academy The academic year has just started. Professors and students have begun a new cycle of transfer and exchange of knowledge. Here at BDO too, we are heralding our new financial year with ambitious plans to systematically transfer the extensive knowledge and experience of our Partners and fellow staff to our new colleagues, our clients and our business partners. We have also decided to give this transfer of knowledge an even clearer structure by creating a proper Academy. This will fall under the day-to-day leadership of Sarah Foubert, who has held the function of Head of HR at BDO Belgium for many years. The name of the new structure ( BDO Academy ) indicates precisely what we want to achieve. After all, the term academy goes back to the school of Plato established around 385 B.C. in Akademeia, a district of Athens. The BDO Academy can in fact be called a modern school. The intention is for it to provide both internal and external, verbal and written forms of knowledge transfer, with a particular focus. This means that training and brochures previously organised and provided professionally (even then!) by the various Business Lines will acquire greater uniformity and identity, and in so doing will become more recognisable. The intention is not only to work on a more structured basis; we will also develop new initiatives to enable third parties to benefit more effectively from BDO s knowledge. This is, after all, something about which we have hitherto been too modest. BDO has built up a huge mountain of expertise and experience in key areas of doing business in which a great many entrepreneurs are often by definition not hugely interested: they want to do business and develop their company, and in doing so they sometimes pay less attention to formal structures and administrative ballast (in the broad sense of the word). We plan to encourage administrative managers, CFOs and Directors, each in their own area of interest, their daily conceptual framework and pattern of perceptions, to sit down with BDO s specialists and engage in the constructive exchange of knowledge. We have enshrined a number of explicit ambitions in BDO Belgium s strategy: we want to grow profitably by convincing our existing and new clients of our approach, we want to attract the right people for this and give them the opportunity to develop Contents BDO Academy page 1 Edito page 2 Rates have rarely been as low, yet money is becoming more and more expensive! page 3 Higher division levy of 2.5% has become fact page 4 Garnishments and attachments for sale: getting your hands on and retaining control. page 5 Accounting treatment of grants for consultancy services page 7 FAQ: Recharging costs: where to start? page 8 The impact of Europe on Belgian holiday legislation and parental leave page 10 The end of the private pension agreement page 11 The split acquisition of a property preceded by a manual gift deemed to be tax abuse page 13 Property rental: To be or not to be? page 13 IFRS News page 15 Certified auditors propose widening their assignments page 16 BDO goes social page 17 Website and career site get a new look page 18 Short News Agenda page 19 BDO is always on the lookout for new talent page 20
2 2 EDITO Corporate 2012 newsletter no 3 Edito Unreported benefits and 309% supertax A tax assessment of 309% on secret commissions can be imposed by the tax authority if a benefit in kind (e.g. free home, company car, etc.) is not reported on an individual tax sheet and the beneficiary also neglects to include the benefit in the personal tax declaration. In practice, during tax inspections the tax department used to accept that the 309% could be avoided by still taxing the benefit after an inspection, or as was done more often in practice by booking the benefit to the debit side of the current account of the beneficiary. This supertax has existed for many years, but since mid 2011 it has caused a great deal of commotion, concern and criticism. The commotion arose through the stricter position of the tax authority in an internal instruction to its officers. There is no longer a case of the tolerances mentioned above, with the result that the 309% tax is applied systematically. At the end of 2011, the continuing criticism of this strict position resulted in a number of relaxations. Not only was the introduction postponed to 1 July 2012, but account is also taken of the good faith of the taxpayer. In an additional explanation on 2 July, the tax authority was fortunately more specific. The 309% tax is not applied to benefits in kind that are assessed on a fixed basis, if the error is in good faith and exceptional, represents a low amount and the beneficiary of the benefit spontaneously rectifies his tax situation. Specifically for company cars the tax authorities will be more tolerant, insofar as the miscalculations are not too great under the new rules for assessing the benefit. The 309% does not apply to excessive restaurant costs incurred for professional purposes, but the excessive part is rejected. However, this tolerance does not apply to restaurant costs that are purely private. In spite of these clarifications and tolerances, a 309% tax remains draconian and comes across as a real punitive measure. According to reports the government is considering re-examining the rule more thoroughly. Let us hope that this will result in a more realistic (and thus lower) rate. WERNER LAPAGE Chairman of the editorial Board in a young and modern working environment, we intend to make optimum use of our knowledge and experience for clients and colleagues alike, and we have to organise ourselves in such a way that we can implement our plans efficiently. Vlerick - Prime Foundation Partnership These four areas are inextricably linked to one another, and the initiatives we develop at BDO must be able to be traced back to the essence of these ambitions. We have therefore also decided to set up a Prime Foundation Partnership with Vlerick, which, under the leadership of our Ghent Partner, Veerle Catry, will help achieve the aforementioned ambitions. We will have a number of studies carried out on the current theme of transfer of businesses, in particular via buy in and buy out, by Professor M. Meuleman from Vlerick, share the results of these studies with media and entrepreneurs, organise or help to organise seminars and training sessions, and bring people together to discuss and learn about this topic. No one will deny that the majority of family entrepreneurs from the baby boom generation will be faced with questions regarding the future of the business within the next five (and certainly ten) years. BDO has considerable knowledge of the statistical, tax and legal implications of such transactions, and is also privileged as a specialist in family businesses, and so can speak with some authority in this debate. Evidence of this is the brochure on this very topic published last year with the VBO. International Business Institute BDO Belgium has recently also gone one step further. It is working actively on the development of a quality programme on international business, which was set up with the name of International Business Institute by the capable hands of Rudi Thomaes under the aegis of the International Chamber of Commerce. Over the course of 22 Friday afternoon sessions (October May 2013), entrepreneurs will be presented with structured explanations of the opportunities and pitfalls of doing business internationally. The average (family) entrepreneur still has not developed adequate reflexes to keep track of developments in the world and take account of what is happening abroad. For some products, Belgium and Europe are simply too small, and for others it may be intelligent from a production technology viewpoint, for example, to set up a joint venture with the Chinese. And if the entrepreneur is still convinced that he or she must do something and ultimately takes steps in this direction, all too often he or she does so without thinking things through well enough. Then he or she might fall into the trap of forgetting that abroad is not the same as a little like Belgium, just a bit further away. BDO also wants to act with social responsibility in this area, and under the leadership of Partner Peter De Smet will do its proverbial bit for this unique programme in highly specific areas of international taxation (customs and excise, VAT, direct taxes, etc.) via the Partners Marc Verbeek and Erwin Boumans. More than ever, entrepreneurs must be willing to think and plan internationally. BDO is ready to provide support in this area in 135 countries. BDO and knowledge transfer. It is a highly successful combination. But to be able to transfer knowledge, you have to have it in the first place. It is time that we proactively show entrepreneurs what knowledge and skills we have. A survey of our clients conducted last year shows that on the one hand they are not
3 2012 newsletter no 3 Corporate 3 sufficiently aware of the areas in which we can offer specialist services, and that clients that are aware of and purchase more services are even more satisfied than others (who are less familiar with us). Or do they use us more often because they are more satisfied? No one will say so, but the correlation is clear. And this shows us that we must dare to take a more active approach with our know-how. And this is without even mentioning the innumerable entrepreneurs who have never heard of BDO yet. So, BDO and knowledge transfer : we must pursue this even more vigorously. The new initiatives of the BDO Academy, Vlerick and the International Business Institute fit in with this plan. BDO can be proud of its staff. Every single one commits himself or herself daily to acquiring knowledge and putting this to the service of the client. And they make the difference by doing this in a particular way: full of passion, very personal, highly professional and always pragmatic. Hans Wilmots CEO BDO Corporate Finance Rates have rarely been as low, yet money is becoming more and more expensive! In the current economic and financial context, so-called reference rates are at historically low levels: the 3-month Euribor is currently floating around 0.30%, while the 5-year Prime rate is 1.60%. Such a rate climate should bring a smile to the faces of borrowing SMEs, yet very few of them are actually seeing any benefit. Access to loans for enterprises has become more complicated and possibly even more expensive a paradoxical situation! Numerous studies show that we are not in a credit crunch; that is, facing a shortage of loans. Statistics show that Belgian banks did not significantly reduce their acceptance rates in the first 6 months of Nevertheless, it is clear that the number of loan applications from enterprises is also in decline. This can be explained by the economic context, which does not favour investment, but also, in our experience, by a lack of willingness on the part of SMEs to apply for loans given the demands being made by banks. It is increasingly complicated for an SME to obtain finance, because banks are being demanding in terms of whom they grant loans to. They want extensive files with greater professionalism on the presentation of the application. It is important to maintain good relations with one s banker(s). More than ever, there must be regular, clear, objective and substantiated communication. This is never a guarantee that your applications for finance will be accepted, but it does mean they will receive a more efficient treatment in better conditions. Given the current context in which banks have to operate, this empathy with them will be appreciated (possibly even rewarded). Nonetheless, this approach demands a further investment on the part of the SME. We therefore advise our clients to broaden the scope of their search for finance for their activities and to also study alternative financing. All too often still, entrepreneurs delay or even abandon their investment project because their bank refuses to go with them. However, there are other sources of finance (public and/or private) that could release the file. We often hear that this alternative financing is expensive and complex, and even that it leads to a loss of control of the company. In reality it is a matter of balance between the different sources of finance. It is important to remember that the more risky the investment, the more expensive the financing will be and that the more prepared and organised you are, the more control you will have over the negotiations. Therefore, given that from now on you have to consider communicating with your traditional banker on a more professional and complete basis, why not diversify your sources of financing to strengthen your financial structure? Eric Bastin BDO Corporate Finance
4 4 Corporate Finance 2012 newsletter no 3 The right financing tool BDO Corporate Finance has the expertise to support your enterprise in the labyrinth of financing issues. Whether you are looking to finance growth, acquisitions, property or industrial equipment or optimise your existing financing structure: we will help you find the structural solution appropriate to your enterprise. Our approach We are convinced that transparent and one-to-one communication with potential financiers is one of the keys to successfully obtaining a loan on the best possible terms. In concrete terms this means that in close collaboration with you we draw up a financing memorandum comprising well-founded projections of the expected structures of the balance sheet, results and cash-flow. If necessary, we will help you draft a business plan. Thanks to the expertise and experience of our teams in financing, we will be able to indicate precisely those questions that are likely to arouse the interest of credit institutions and investors. This improves understanding, reduces potential creditors perception of the risk and speeds up procedures, which benefits all concerned. TAX Higher division levy of 2.5% has become fact The division of real estate situated in Belgium must by law be registered. This registration involves a charge: the division levy. The Flemish division levy is owed in the following transactions with real estate located in the Flemish Region: you own a piece of real estate together with your spouse or cohabiting partner (house, plot of land, etc.). When the relationship ends, you want to buy out your partner s share of the real estate; together with other inheritors, you inherit a piece of real estate (house, plot of land, etc.). You want to take over the other inheritors ownership of the property in return for payment; as the longest-living spouse, you inherit usufruct over a house and want to convert this usufruct into full ownership subject to payment to the holders of the bare ownership of the value of the bare ownership. The division levy used to be 1%. The original plan was to increase the division levy to 2%. The Flemish Government intended this measure to generate annual revenue of EUR 40 million. Opposition parties thus spoke of a real misery tax. This fairly soon also led to division within the Flemish Parliament concerning the morality of this tax. After all, in many cases the division levy involves divorcing couples. The Commissioner for Children s Rights said: a divorce is already a severe financial burden, and the present decree bumps that cost up even further. Reference was also made to the fact that single people with children were at much greater risk of poverty. Taxing parents at the time of their divorce was therefore condemned as downright immoral. In the end, however, it was decided to increase this rate to 2.5% from 1 August 2012, albeit with the introduction of a number of social corrections. An exemption is provided of EUR 50,000 on the tax base for couples who divorce and, in addition, a further EUR 20,000 per child. However, the exemption only applies to married couples and legal cohabitants. De facto cohabitants are not therefore eligible. This also means that the full 2.5% is owed in the case of inheritance. There are no exemptions to this. Succession planning techniques where various pieces of property are donated jointly to several people therefore fall by the wayside. This technique is aimed at treating inheritors (children) fairly if the values of the donated properties do not evolve in value in the same way.
5 2012 newsletter no 3 TAX 5 The situation is different, however, if the property is purchased by a third party (namely by a person other than those who jointly own it). In that case, the division levy of 2.5% does not apply, but the registration fee determined in accordance with the general provisions on transfers in return for payment, which is often much more than 2.5%, does apply. If necessary, however, it can be agreed that the registration fee be (partly) borne by the purchaser. It should also be noted that the division levy for real estate situated in the Brussels-Capital Region and the Walloon Region remains unchanged. It is therefore still 1%. Cindy De Bock BDO Tax Consultants A simple example illustrates the financial impact. Take a divorcing couple with two dependent children: Married couples/legal cohabitants (amounts in EUR) De facto cohabitants (amounts in EUR) Value of the house Base deduction Deduction for dependent children Tax base Division levy 2.5% Accountancy Garnishments and attachments for sale: getting your hands on and retaining control. You have no doubt been faced at some time with a client or taxpayer who, instead of paying his debts, prefers to hold onto the money owed to your account for his own account. This process has two major impacts: firstly, it impoverishes upstream companies and, as a consequence, slows down the economic system and, secondly, you become his banker but it is you who pays the interest, since your cash position is weaker than normal. However, there are effective and often unheralded measures to allow creditors to recover the sums owed to them. These measures include seizures. Before applying any form of seizure, two vital conditions must have been satisfied, namely the existence of a title, be it judicial or private, and the amount receivable must be certain and of a fixed amount. There are two categories of seizure: garnishments, attachments for sale. The term order can also be used to complement these two categories. We then refer to garnishments orders and attachments for sale by court order. This extra term signifies that the item of property is seized from third parties. General characteristics of garnishments A garnishment renders unavailable all or some of a company s assets with a view to protecting them from any potential subtraction undertaken by said company. The item of property
6 6 ACCOUNTANCY 2012 newsletter no 3 seized remains the property of the company, which retains enjoyment and can continue to receive the benefits thereof. It does not give rise to any privilege on the part of the creditor and is not a compulsory step before the enforced collection procedure (attachment for sale or attachment for sale by court order). General characteristics of attachments for sale An attachment for sale is the procedure by which a creditor in possession of an enforceable judgment pursues actual payment of its debt against a debtor by the forced realisation of the seized assets, both movable and immovable. The aim is clearly to obtain the price of the overdue debt. In contrast to garnishment, the benefits of the seized item will also be affected by the attachment for sale. In situations where the execution debtor fails to make payment after having received the final demand and notice (payment order following judgment), proceedings are instituted to forcibly sell the property. To do this, a public auction is held by the bailiff or the notary. A sale by mutual agreement may also be undertaken by the execution debtor but in practice this is very rare. Delimitation The debtor can release the assets affected by a seizure or oppose a seizure by filing a delimitation offer, either with the Caisse de Dépôt et Consignation or the receiver. The delimitation must represent an amount sufficient to cover the debt in principal, interest and charges. Accounting law, along with the Royal Decree implementing the Companies Code, requires a company to mention all its assets and entitlements in its balance sheet. Also mentioned in the annex are the entitlements and commitments that do not appear in the balance sheet and which are likely to have a major impact on the assets, financial situation or result of the company. The Accounting Standards Commission recommends that, based on the principle of prudence, if the management body is of the opinion that the garnishment has a major impact on the company s assets, the garnishment must be mentioned in the annex to the annual accounts. This recommendation also applies if the item or cause of the seizure is the subject of delimitation. Everything mentioned below applies to the attachment for sale up to the time of the forced sale. At the time of the sale, there is a release of exceptional gains or losses on the realisation of assets. The costs of the forced sale are also included in the debtor s accounts as an exceptional charge. After the creditor has been paid, the balance, less costs, reverts to the credit institution account, settling the amount receivable from the sale and the supplier s debt. philippe.dothee BDO Accountants Duty to give information, accounting law and Companies Code Annual accounts must provide a true picture of the company s assets. Conclusion The Civil Code, the Mortgages Act and the Judicial Code provide the possibility of recoveries overdue debts in a manner that is effective and often little used. These means are generally less expensive in practice, especially garnishments, but the impact on the amount receivable is extremely significant. It is undeniable that the possibility of trading again or providing services will permanently be lost through seizure. It is therefore important to also take into consideration the commercial impacts of the situation.
7 2012 newsletter no 3 ACCOUNTANCY 7 Accounting treatment of grants for consultancy services The self-employed, micro-, small- or medium-sized enterprises can benefit from a regional grant for services provided by outside consultants. How does it work? This grant is not directed at all external consultancy services. Such external consultancy services aim at solving an exceptional, one-off or urgent problem in the management of the enterprise with a view to improving its operation and competitiveness. They may also be consultancy relating to business transfers. The enterprise will have to submit an aid application in advance of the assignment and call in an external consultant approved by the Region. Subsidies may only be provided for assignments that have received the prior approval of the Region. The grant will be paid once the enterprise has provided the administration with a detailed consultant s report as well as a copy of his or her invoices, duly paid. The amount of the grant varies depending on the region, and in all cases represents a percentage of the consultancy fees limited to a certain amount. Accounting aspects According to opinion 2011/13 from the CNC, operating subsidies are subsidies that are obtained in a way that is not linked to capital investments immobilisations. They are sums granted by the public authorities to an entity with a view to offsetting or covering certain operating expenses. The regional grant under discussion in this article is therefore considered to be an operating subsidy. This must be recognised as soon as the process of obtaining takes on a certain character and it can be reasonably assessed. Article 96 of the Companies Code Royal Decree provides for the recognition of operating subsidies in the Other operating income section of the profit-and-loss account. In practice Entry on receipt of the consultant s invoice Fees to 440 Suppliers Entry as soon as the process of obtaining the subsidy takes on a certain character Deferred income to Operating subsidies Entry when the subsidy is cashed Bank to Deferred income Remark: the subsidy for consultancy services is not definitively acquired until the end of the consultant s assignment. There is therefore no possibility to partially transfer the subsidy to later financial years. Tax aspect Once awarded, aid and grants obtained in a way that is not linked to tangible or intangible capital investments are charged to results under the heading other operating income. Like any other income, subsidies for consultancy services contribute towards the generation of profits and are therefore normally taxable for the taxable period during which they were allocated (C.I.R. commentary, no. 24/28). BDO has several consultants on its staff who are approved for the various regions, so please feel free to contact us if you should require further information. Emérence Hardy Jean-Marie Ruidant BDO Accountants Summary by region: Walloon Region Flemish Region Brussels-Capital Region Name of the aid Type of assignment Amount of the grant Wallonia Public Service: Consultancy Services 50% of the amount of the Grant for consultancy services fees up to EUR 12,500 SME portfolio Brussels-Capital: Aid for the use of outside consultancy services Consultancy for entrepreneurship - consultancy for innovation - training Consultancy assignment - feasibility studies - pre-activity studies and consultancy 50% or 75% of the amount of the fees up to EUR 15,000 50% of the amount of the fees up to EUR 15,000
8 8 FAQ 2012 newsletter no 3 FAQ Recharging costs: where to start? In practice, many businesses are regularly faced with having to recharge costs. An incorrect application of the specific rules relating to this problem can all too quickly lead to double deduction restrictions as regards VAT, not being able to claim back the VAT charged or even fines. High time therefore to map out the current rules... How do you approach re-invoicing? Generally speaking, when recharging costs, in VAT terms a distinction is made in approach according to the following three situations: 1. Recharging costs as part of the supply of goods or services. In other words the costs incurred and recharged contribute to the supply of goods or services. For example, the supply of a computer is increased by postage and packaging costs; 2. Reinvoicing of costs alone. These are costs you are charged before passing them on at a later date, possibly to group companies, but without them forming part of a set of transactions. Think, for example, of the costs a maintenance firm charges to the owner of a building, who then recharges them to his tenants; 3. Recharge of amounts paid in advance. This concerns sums that are advanced for expenses incurred in the name and on behalf of the contracting party (to whom you will pass on these costs). Thus, each year BDO Accountants recharges the costs of filing annual accounts with the National Bank of Belgium that it has paid in the name and on behalf of its clients. What about VAT? Once you have checked whether or not the costs to be recharged fit into the supply of goods or services, the following rules of thumb can be applied: 1. Recharging costs relating to a set of transactions If the costs recharged relate to performances that were provided in execution of a single agreement for the supply of goods or services, these costs form an integral part of the price to be charged. Even if the costs recharged in relation to the main operation are itemised separately on the invoice, they follow the principle of 'side issue follows main issue'. Whether or not VAT has to be charged depends on the main action to be invoiced. Suppose the aforementioned computer is invoiced and delivered to a Belgian company, then 21% VAT will actually be charged on the computer + postage and packaging costs. Conversely, if an intra-community supply of goods is made to a French company, then the reverse charge mechanism applies. 2. Recharging costs alone If the individual costs recharged do not fit into a set of transactions, the broker principle applies. This principle implies that you are deemed to have received and supplied the goods or services that are recharged yourself. In our example, the maintenance firm will charge for its work without VAT, stating VAT to be paid by the contracting party - RD 1, Art. 20. Costs must be recharged to tenants in the same way. Do the same principles apply to advances? No, for the purposes of recharging costs, advances do not belong to the taxable amount and therefore fall outside the scope of VAT application. In our example, therefore, BDO Accountants will never charge VAT on the recharged filing costs for the annual accounts. Furthermore, BDO Accountants will also not be entitled to a deduction (although the client is), because the invoices were not issued to its name. Do you have any questions on this section? Feel free to send your request to :
9 2012 newsletter no 3 FAQ 9 FAQ There is therefore a certain merit in analysing whether or not a sum can be considered an advance. Just think of charging clients with or without a limited right to deduct VAT (for whom the charged VAT would be an extra cost), or VAT payers who cannot in principle benefit from a right to deduct incorrectly charged VAT. Who bears any deduction restriction as regards VAT? If costs have been re-invoiced, it is logical that the VAT you initially paid yourself is recoverable. That is the general principle in relation to the deduction of input VAT. Otherwise it would be as if these were costs for which the VAT is not or only partially recoverable. Here too we fall back on the above analysis. If the recharged costs form part of the price asked, the deduction restriction cannot be shifted onto the client. However, this can be done if a cost alone is recharged. If restaurant expenses are re-invoiced in connection with a conference, this forms a single transaction (side issue follows main issue). This implies that the VAT for the party who recharges these expenses is not deductible (but is for the client, but for him or her these are then no longer restaurant expenses). If, conversely, these expenses are re-applied as such, the deduction restriction is shifted onto the end-customer. Are there no exceptions to these rules this time? Yes, there are. VAT on vehicle costs is only recoverable up to a maximum of 50%, even if it is recharged. In this case, therefore, the deduction restriction can never be shifted onto the client, not even by mentioning the vehicle costs separately on the invoice. Are there divergent rules for corporate income tax? No. If the cost in question is listed separately on the invoice, the deduction restriction can be shifted onto the client, otherwise you yourself are subject to the deduction restriction. In connection with restaurant expenses, it is advisable to also clearly mention the name of the restaurant and the date of the meal on the invoice as well as the amount. It is also best to include a copy of the restaurant bill. Under corporate income tax, deduction restrictions in the field of vehicle costs can also not be passed on to the client, even if they are mentioned separately on the invoice. Can these passed-on costs be included in the accounting result? The crucial element here is whether you act as agent in your relationship with the client (i.e. in the name and on behalf of the client), or buy and sell goods and/or services for your own account for profit. In specific terms, when re-applying advances, the paid and passed-on expenses will not have the character of accounting costs and revenues. BDO Accountants will not therefore post the pre-financed filing costs of the annual accounts in its result, but as a claim in the balance sheet assets. If, however, you trade for your own account and in your own name, the recharged costs will have the character of costs and revenues and must be entered as such in the profit-and-loss account. Please note: according to current accounting principles, compensation between charged and re-applied costs s not permitted. Dirk Vandendaele BDO Accountants Do you have any questions on this section? Feel free to send your request to :
10 10 Social Law 2012 newsletter no 3 The impact of Europe on Belgian holiday legislation and parental leave However, the following conditions must be satisfied to open up entitlement to the European holiday: It concerns the commencement or resumption of an activity in the service of one or more employers. People commencing an activity therefore include the selfemployed and people switching from a job in the public sector to a job in the private sector. The resumption of an activity refers to employees who, for example, were fully unemployed or unfit for work prior to the resumption, as well as employees who were entitled to departure holiday money because of redundancy or a complete suspension of employment for military service, parental leave or time credit or unpaid leave. A qualifying period of 3 months must have been completed. European Directive 2003/88 concerning certain aspects of the organisation of working time has already caused quite a stir in our Belgian holiday legislation. For example, Belgium was declared to be in default for failing to comply with this Working Time Directive, and in particular for not granting at least 4 weeks paid annual holiday. Following a recent ruling by the European Court of Justice concerning sickness and the right to holiday, a further change in Belgian holiday legislation looks imminent. Directive 2010/18 implementing the revised Framework Agreement on parental leave extends this leave from 3 to 4 months for each parent and was transposed into Belgian legislation by the Royal Decree of 31 May The European holiday Belgian holiday legislation distinguishes between the holiday service year and the holiday year. The employee must earn his or her holiday or, in other words, in the holiday year (the current calendar year) the employee is entitled to holiday on the basis of his or her work performance during the holiday service year (the previous calendar year). The consequence of this is that if an employee has not worked a full holiday service year, there can be no entitlement to 20 days statutory holiday with pay as prescribed by the Working Time Directive. To comply with European requirements, the supplementary or European holiday was introduced (as of 1 April 2012, Article 58 of the Law implementing various provisions of 29 March 2012 and the Royal Decree of 19 June 2012). The European holiday is open to all employees who were never or only partially subject to the legislation relating to annual holiday. It is the employee s right to apply for his or her European holiday or not. Entitlement to European holiday only arises once an employee has worked for three months. This period may be interrupted and can involve work for various employers, but must relate to the same calendar year. An employee employed in a 5-day system is entitled to 5 days European holiday from the final week of the qualifying period completed in the calendar year in question. The statutory holiday has already been taken. The statutory holidays must first have all been used. Youth holidays and senior holidays are not covered by this scheme. It is, however, recommended that these are all used first before applying for European holiday. If European holiday is taken, the employee must bear in mind that the additional holiday pay (the so-called single holiday pay) received for the European holiday will be deducted from the future double holiday pay to which he or she is entitled. If youth holidays or senior holidays are applied for, the employee receives an NEO payment and no settlement is required. Holiday and sickness The current legislation provides for the possibility of recuperating holidays if the sickness began before the start of the statutory holiday. This is because the first suspension of the employment contract takes priority. For the time being, therefore, it is not possible to claim holidays back if the sickness begins during the holiday. In a recent ruling, the European Court of Justice decided (Case C-78/11 of 21 June 2012) that the Spanish legislation
11 2012 newsletter no 3 Social Law 11 which stipulates that an employee who becomes unfit for work during his or her paid annual holiday is not entitled to claim back at a later date the annual holiday that coincides with the period of unfitness for work contravenes the Working Time Directive. The European Court clearly states that Article 7(1) of Directive 2003/88 [...] concerning certain aspects of the organisation of working time must be interpreted as precluding national provisions under which a worker who becomes unfit for work during a period of paid annual leave is not entitled subsequently to the paid annual leave which coincided with the period of unfitness for work. Based on this ruling, Belgian holiday legislation should in principle be updated. Watch this space... leave, in the 15 months prior to the application, the employer must have been in the service of an employer for at least 12 months. A distinction is, however, made between children born before or after 8 March The NEO only makes payment for the latter category. Furthermore, an additional entitlement is granted to the employee to apply for a modified work arrangement or work schedule for a period of up to 6 months immediately following the parental leave. The employer must assess such applications with due regard for its own requirements and those of the employee, and provide the employee with a reasoned written response at the latest 1 week before the end of the current period of parental leave. 4 months parental leave The Royal Decree of 31 May 2012 transposing Directive 2010/18 concerning parental leave extends as from 1 June 2012 the length of parental level from 3 to 4 months for all parents. Parental leave can be taken until the child reaches the age of 12 and in accordance with the current arrangements (full-time, part-time or 1/5). To be entitled to parental Kathleen Engelen BDO Legal Advisors tax The end of the private pension agreement The Programme Law of 22 June 2012 (Belgian Official Gazette of 28 June 2012) imposes a ban on independent company representatives entering into new private pension agreements. Initially it looked as if the existing internal pension promises would have to be externalised and converted into an individual pension commitment (IPC), but this obligation did not ultimately materialise. There is, however, provision for a specific transitional regulation, which can be summarised as follows: Freezing of the scheme as at the end of 2011 Private pension agreements may continue to exist in their present form (internal funding with pension provision), but only to the extent of the pension provision already created at the end of 2011, this is for the amount at the end of the last financial year with a closing date before 1 January That portion of the pension capital that exceeds the amount of the existing pension provision at the end of 2011 can no longer be built up any further internally. That future portion must be funded externally through an IPC (or not built up any further). The limitation to retaining the internally created provision up to the amount at the end of 2011 implies that the current value of the pension acquired to this date can be retained, and therefore not the nominal part already acquired. Strictly speaking, therefore, the provision would have to be recalculated to the new reduced final capital, which would lead to a withdrawal of part of the pension provision, and to a gradual reconstruction over the remaining years, but that is thus not permitted. In practice, companies will have to freeze the contractually agreed pension at the provision at the end of A number of other changes will also have to be made to the contract (modification of death benefit, change of final age
12 12 LEGAL 2012 newsletter no 3 from 60 to 62, etc.). All existing contracts therefore need to be reviewed. The existing private pension agreements may - but do not have to - be externalised and converted into an IPC insurance for the past (wholly or partially). An exemption from the 4.4% premium tax that is unlimited in time applies here. Special tax of 1.75% However, a special one-off tax of 1.75 is owed on the existing pension provision at the end of 2011 (optionally payable in three annual instalments of 0.60% each), regardless of whether or not the existing pension provision is externalised. This tax is settled in the in the corporation tax return (in tax year 2013 and two subsequent years) by including this amount as a rejected expense. No tax therefore needs to be paid to the insurance company. The switch to IPC will also be on a tax-neutral basis, provided the 80% limit is honoured up to the time of the switch. The following arguments can stimulate a switch to IPC insurance: In IPC insurance, the built-up pension rights remain protected if the company goes bankrupt, and the IPC insurance can also be used for real estate via collateral and pledges. Company director s insurance It often used to happen that a company did not create accounting provision in the case of a private pension agreement, but took out company directr s insurance for its own benefit. Existing private pension agreements that were funded with such manager insurance taken out before 1 July 2012 may continue to exist in this form. Even the future premiums relating to this manager insurance may continue to be paid. If preferred, however, they can also be converted on a tax-neutral basis to IPC insurance, but this must be done before 30 June 2015 (in contrast to private pension promises, which may be converted at any time). Company director insurance that is not used to fund private pension agreements but which is only intended to cover the company against the financial consequences of the departure of a manager ( key man insurance ) is not concerned and will therefore also still be able to be taken out in the future. Rates on payment As regards supplementary pensions, the rate of 16.5% on capital payments is being increased as from 1 July 2013 for all pension payments funded with contributions from the company. The rate is being increased to 20% for payments at the age of 60, and 18% for payments at 61. Pension payments from the age of 62 will continue to be taxed at 16.5%. The 10% rate for those who remain in work until their 65th birthday will remain. However, payments from a private pension promise remain taxable at a rate of 16.5%, provided the beneficiary retires. Since (after a transitional period) from 2016 it will only be possible to retire from the age of 62, you risk progressive taxation if you receive the internally funded pension capital any quicker. At the time the pension is paid out, IPC insurance therefore also has benefits compared with the private pension agreement: enjoyment of the 16.5% rate from the age of 62, even if the person concerned remains on as a manager. With a private pension agreement, the manager must cease his or her activity and possibly even receive the statutory pension. The reduced taxation of 10% can also be enjoyed for those who remain in work until their 65th birthday and only then take their supplementary pension capital from their IPC, this reduced taxation of 10% does not exist for private pension agreements. We would also like to report that the new Programme Law provides for an extra social security contribution (Wyninckx contribution) for self-employed company directors and employees of 1.5% of that part of the pension premiums (life/death) that exceeds EUR 30,000 per annum (not on the amount transferred from an internal pension promise). Furthermore, all existing pension promises will have to be reported to the pension database (currently being set up), otherwise the amount will not be deductible on payment. Dirk Van wal BDO Tax Consultants
13 2012 newsletter no 3 LEGAL 13 The split acquisition of a property preceded by a manual GIFT deemed to be tax abuse This type of operation falls within the scope of Article 9 of the Inheritance Tax Code, which stipulates that the property acquired in this way is assumed to be in full ownership in the succession of the usufructuary when he or she dies, such that the bare owner will have to pay inheritance tax. However, this presumption is rebuttable, and it is therefore possible to do away with it by proving that the acquisition does not disguise a gift, i.e. that the presumed heir has indeed paid the price corresponding to the bare ownership of the property. What if the bare owner has paid the sales price using funds donated by the usufructuary? Previously, it was accepted that the presumption of Article 9 could be overturned by demonstrating that the financial donation had been made before his or her share of the price was paid. Since the publication of circular no. 8/2012 of 19 July 2012, the manual donation of a sum of money followed by a split acquisition can be considered as a suspected abusive transaction if it appears that there is a unity of purpose between these two acts with a view to avoiding the application of Article 9 of the Inheritance Tax Code. Split acquisition is understood to mean the acquisition of a property in usufruct by a person and in bare ownership by another acquirer. This technique is frequently used to transfer the acquired property to one s heirs without their having to pay inheritance tax: the parents purchase the usufruct, the children the bare ownership, and on the death of the parents the children automatically become full owners. Henceforth, it seems that if the usufructuary dies, the administration will be able to subject the total value of the property acquired in split fashion to inheritance tax if it succeeds in establishing a unity of purpose between the donation of the funds and the acquisition of the bare ownership. The elements that could allow the existence of this unity of purpose are not yet clearly defined, but it is understood that the burden of proof will lie with the administration. JEAN-PHILIPPE WEICKER BDO Legal Advisors tax Property rental: To be or not to be? We know that classic property rentals are exempt from VAT (Article of the VAT Code). However, since the TEMCO judgment of 2004 by the Court of Justice of the European Union (CJEU), certain property occupancies can be described as services subject to VAT if a set of conditions is satisfied. We note that the Courts and Tribunals occasionally have difficulty deciding whether to describe the operation as an exempt property rental or a service subject to VAT. The latest criteria laid down by international and domestic case-law mention the active or passive interference of the owner of the premises in the management of the property to describe
14 14 TAX 2012 newsletter no 3 the operation as a service (active interference) or a property rental (passive interference). We will address the question of what constitutes property rental and what does not. Qualification of the transaction Describing the operation as a service subject to VAT or as a property rental exempt from VAT is not neutral: for both the owner and the tenant. Within the context of exempt property rental, the owner is an exempt taxpayer and cannot recover the VAT on the costs and charges associated with the property. This cost is generally recovered in the rent demanded of the tenant. If the operation is described as a service subject to VAT, the owner is liable for VAT and can recover the VAT on the construction costs and charges associated with this property. For the tenant, VAT will be charged on the service but will be deductible by the tenant if it is liable for VAT. Enterprise zones Within the framework of negotiations between owner and occupier, it is important to know beforehand if the operation they intend to put in place is a property rental or a service. The circular of 27 September 2005 (Circular no. AFER 39/2005 E.T ) lists a series of minimum and additional services that must be provided by the owner for the operation to be able to be described as a service. These elements include: provision of one or more premises, without the customer being able to substantially alter the layout of the office; provision of common meeting rooms for a certain time; provision of common spaces: corridors, sanitary areas, lifts, administrative rooms (for the photocopier, fax machine, etc.), and possibly a fitted kitchen or kitchenette, a reception area or room where people can relax, etc.; provision of common office equipment: photocopier, fax and possibly printers, cutters, binding machines, etc.; provision of the ICT infrastructure (cabling and connection points into the offices, patch panel, telephone exchanges and customer line for telephony and internet access, etc.); provision of one or more telephones. ActiveManagement of the property In 2007, the Advance Ruling Service issued an opinion on an operation in which the owner actively managed the property. The facts of the case were that the owner was demanding various specific conditions (opening times, special rates for certain categories of visitor, setting up of a strategic committee, etc.). In this case, the operation was subject to VAT. Passive rental Services On 4 June 2010, the Belgian Supreme Court had to rule on a property rental of the Mons-Expo Hall, which the owners intended describing as a service subject to VAT. The arguments put forward included : the provision of premises with limitation of the right of occupancy; the provision of ancillary services (cleaning, insurance, electricity, technical personnel, maintenance personnel, reception personnel, car park, cafeteria, kitchen, conference room, cloakroom, telephone, etc.). The Supreme Court found that the services provided were ancillary and did not affect the property rental, which remained passive. In other words, the owner did not take a sufficiently active part in the management of the property to be able to describe the operation as a service subject to VAT. This reasoning had been taken from the case-law of the CJEU in judgment RLRE Tellmer Property (Case C-572/07). According to this case-law, the passive provision of spaces and areas within buildings for a certain fee must in principle be described as property rental when no other service is provided in addition. The antwerp Court of appeal The Antwerp Court of Appeal has just ruled on this type of rental. In the case in question, a cafeteria was made available to an operator. The parties had initially described the operation as a property rental exempt from VAT. Following a VAT audit, the administration felt that the operation should be subject to VAT, by virtue of the active interference of the owner. The owner was in fact providing guidance on: the layout and maintenance of the premises; the opening times of the premises; the products and services provided; the prices asked; the advertising undertaken; the owner s visits to the premises. The occupant of the premises did not agree with this description, and took the matter to court. The Antwerp Court of First Instance described the operation as a property rental exempt from VAT. The owner of the premises actually limited itself to passively providing the cafeteria for the franchisee. The sole aim of the city, which owned the cafeteria, was that the cafeteria should be used for the public purpose for which it was intended, by means of restrictions imposed within the context of permanent passive provision (Antwerp Tribunal, 15 November 2010). The case was then brought before the Antwerp Court of Appeal. This Court confirmed that the services demanded by the city and provided by it did not lie outside the property rental of the premises. The restrictions imposed in the