The largest exemption under inheritance and gift tax is still the business succession scheme (BOF). Naturally, this exemption is subject to certain conditions.
Business succession facility
This scheme is usually referred to by the Tax and Customs Administration as a business succession schemeregulation (BOR). If you inherit or are gifted business assets, that acquisition is conditionally exempt from inheritance and gift tax. For the purposes of the exemption, it makes no difference whether you acquire the business assets of a sole trader, a general partnership (VOF) or a professional partnership. You can also claim the exemption for a business operated by a private limited company (BV) or a public limited company (NV).
Up to €1,084,851 of the company’s value, the acquisition is exempt under 100% (for acquisitions in 2019). Above that amount, 83% of the acquisition is exempt. You must consider the total value of the tangible business. This includes, for example, not only the assets and liabilities of the private limited company, but also the premises let to the company by the director and major shareholder, in which the business is carried out.
Property requirement
One of the conditions attached to the BOF is the ownership requirement, which means that:
- if you inherit a business, that business must have been run, directly or indirectly, on behalf of the deceased for at least one year prior to their death;
- If you receive a business as a gift, that business must have been run, directly or indirectly, on behalf of the donor for at least five years prior to the gift.
The ownership requirement is an anti-abuse provision. The aim is to prevent situations where, just before a person’s death or a gift is made, arrangements are hastily put in place to enable the BOF to be applied. Investment assets are then converted into business assets through the acquisition of shareholdings in companies.
By company
You must meet the ownership requirement for each company. This has been decided by the Zeeland-West Brabant District Court decided in November last year. On 15 January 2014, a son received a gift from his parents of all the shares in a private limited company (the holding company). The parents have held the shares in the holding company for (well) over five years.
The value of these shares is €472,000. The private limited company holds 100% of the shares in three other private limited companies (B BV, C BV and D BV), and these private limited companies hold interests in a number of general partnerships. The value of the shares acquired (€472,000) falls well within the 100% exemption under the BOF. However, the Tax and Customs Administration maintains that the BOF does not apply to the subsidiary private limited companies, which the holding company has held for less than five years.
The company in question is C BV. That company was incorporated in November 2007 by one of the parents. On 24 November 2009, the holding company purchased the shares in C BV (by means of a notarial deed). The period for the ownership requirement therefore commences on 24 November 2009. At the time of the transfer of the shares in the holding company, on 14 January 2014, less than five years have elapsed, meaning that C BV does not meet the holding requirement. The BOF would, however, have applied if the gift of the shares in the holding company had taken place after 24 November 2014. The value of the shares in C BV has been set at € 67.759.
A similar problem arises in the case of B BV. That BV holds a 50% stake in a general partnership (VOF), and this VOF is a 100% shareholder of E BV. The general partnership acquired the shares in E BV on 27 January 2010, meaning that the five-year holding requirement has not yet expired in respect of this company either. The value of E BV has been set at € 236.796.
The Court concludes that the BOF can be applied to only: €472,000 - €67,759 - €236,796 = € 167.445. The legislature’s intention in imposing the ownership requirement is to prevent taxable private or investment assets from being converted into exempt business assets. If this were assessed solely at the level of the holding company, the holding company could convert its investment assets into business assets in the event of death or a gift. The Court considers this to be contrary to the purpose and spirit of the ownership requirement.
Opinion
The BOF is such a significant exemption that it is usually worth taking it fully into account when structuring a business. The ownership requirement is not the only condition that needs to be borne in mind in this regard. VWG would be happy to assess whether your company’s structure is BOF-compliant.