A woman died in 2020. The tax inspector issued an income tax assessment, taking into account a taxable income from a substantial interest of €241,893. The woman’s heirs argue that she did not have a substantial interest. After all, her husband is the sole shareholder of the holding company. The woman transferred her sole share in the holding company to her husband on the day it was incorporated. According to the heirs, the amendment of the marriage contract to provide for a full community of property does not alter this situation.
Fictitious disposal
The court rules that the shares in the holding company form part of the matrimonial property at the time of the woman’s death. As a result, the woman has a substantial interest in the holding company. The transfer by universal succession upon death is treated as a notional disposal. The capital gain amounts to €241,893.
Carry-forward facility
The heirs further argue that the roll-over facility applies. The business is being continued by the husband. The court does not agree with this view. As the holding company and its subsidiary have not carried out any activities or generated any turnover since 2015, they do not constitute a going concern. Nor is there any question of joint ownership. The roll-over facility cannot therefore be applied.