Items made available by the director-shareholder to the “own” BV are taxed with income tax as income from other activities.
TBS scheme
This scheme is known as the TBS scheme. In box 1 of income tax, the remuneration actually received from the BV is taxed, less the actual costs incurred (including depreciation and financing interest). If the fee actually received from the BV is lower than the business fee, the tax authorities may adjust the fee.
Horse complex
The Inland Revenue took advantage of that opportunity in a case in which Hof ‘s-Hertogenbosch recently ruled. The director-shareholder (DGA) in this case is the private owner of a horse complex. He makes this complex available to the BV 60 times a year for short periods (of up to one month) for stabling the horses. For the periods during which the complex was made available to it, the BV pays the BV a total fee of €9,100 for the boxes it uses.
The Inland Revenue corrects this allowance to an amount of €34,000. This is the economic rental value of the entire complex for one year. The Court agrees with the Tax Office that the DGA made the entire complex available to the BV for the entire year. The issue here is to what extent the BV had the freedom vis-à-vis the DGA to use the entire complex or only part of it. How much the BV actually used the complex is irrelevant for this purpose.
The lease agreement does not show that the BV's use was limited to a number of boxes. Nor were such boxes designated as such. The court notes that it rather appears that the BV could dispose of the boxes, and the other facilities in the complex, as it saw fit (the lease agreement states: “That the rental of the horse boxes includes the use of the entire accommodation”). Boxes rented to third parties were also rented by the BV under the lease agreement .
The DGA still argues that the BV never owned more than 19 horses, but that is irrelevant to the question of whether the BV had the freedom to use the entire complex.
Finally, the court considered that the DGA's income statement also assumes that the entire complex is at the disposal of the BV. Thus, the total value of the complex is reported in the TBS balance sheet. And depreciation on the total acquisition value of the complex is charged to the TBS income throughout the year.