A mother has placed her assets in a trust. As a result, they would no longer be regarded as her own assets and would remain untaxed.
The trick didn't work
Recently, the The Hague District Court that this ploy will fail. The assets held by the foundation should be regarded as a separate private assets (APV). The assets must therefore be attributed to the mother for tax purposes. The mother died in 2013. The assets form part of her estate. As a result, her son is liable for inheritance tax.
APV regime
Since 1 January 2010, tax legislation has included a scheme for the segregation of assets. The aim of the scheme is to prevent assets from being segregated and thereby remaining untaxed because they cannot be attributed to any particular person. The APV regime looks beyond the entity and taxes the assets in the hands of the underlying owners or heirs of those assets. The place of establishment or the legal form of an APV is irrelevant.
Social importance
In 1993, my mother established Foundation A. One of the foundation’s objectives was to promote the teaching of modern languages. Following her death, however, it transpired that, in recent years, my mother had not been actively working towards achieving the foundation’s objective. The foundation’s sole activity consisted of letting four properties in The Hague. According to the court, the foundation therefore cannot be classified as an organisation serving the public interest (SBBI).
Family
The court also based its ruling on the fact that there was a family relationship between the parties involved in the foundation. The mother’s son was chairman and treasurer of Foundation A. Furthermore, all four of the foundation’s properties were let to family members at rents below market rates. Furthermore, the mother had personally guaranteed the foundation’s mortgages and had claimed the mortgage interest as a deduction in her income tax return.
Private interest
The court concludes from the foregoing that this constitutes an APV. The foundation’s assets serve the interests of the family rather than the social interest described in its objects. A ‘intended to serve more than a merely incidental private interest’. The assets have been set aside by the mother, but must be included in her estate pursuant to Section 2.14a of the Income Tax Act 2001 and Section 16 of the Inheritance Tax Act 1956.