A director-major shareholder (DGA), which is a person who holds 5% or more of the outstanding share capital of a B.V., who leases a property to that B.V., is taxed under the so-called disposal scheme (abbreviated as TBS). The TBS scheme is subject to the profit regime. This means that book profits and losses are also subject to income tax.
That levy arises when the property is sold, but also, for example, when the TBS scheme ends because the shares of the B.V. are sold. The Advocate General at the Supreme Court (A-G) is of the opinion that this should ignore the retroactive effect stipulated when the shares were sold. The agreement to sell the shares of the B.V. concluded on 3 July 2007 in this case stipulated that the transaction had retroactive effect to 1 January 2007. According to the A-G, the TBS arrangement does not end on 1 January 2007, but on 3 July 2007. The Supreme Court will deliver its judgment in this case within a few weeks. We suspect that the Supreme Court will follow the A-G in doing so.
The (imminent) end of the TBS scheme is a major concern in tax advice. Especially when there is no question of selling what is made available to the B.V.. After all, in that case the liquidities are not released to pay income tax with. Depending on the specific situation, it may be interesting not to sell all the shares of the B.V. so that the TBS scheme can continue. The business succession facility (BOF) in inheritance and gift tax may also be a reason to keep a stake in the B.V. Involve a tax expert in time with your plans to sell shares in your B.V., so that the most favourable tax route can be mapped out in time.