The tension in the United Kingdom is palpable. In the meantime, the initial date of Brexit, 29 March 2019, has been delayed. Depending on whether an agreement will be reached or not on 29 March, UK's departure date will be moved to 12 April 2019 in case of a hard Brexit (no deal) and to 22 May 2019 in case of a soft Brexit (deal). It is clear that Brexit will have an impact on tax matters, both in the area of direct and indirect taxes.
The consequences will also be noticeable as regards the Flemish registration and inheritance tax. Below are a few examples:
- Family companies having their effective centre of management in the United Kingdom ('UK') will be outside the preferential regime (cfr. 0%) for donations of shares (Art. 126.96.36.199.3 Flemish Tax Code). A donation of shares from a family company or a company with its effective centre of management in the UK will be subject to a rate of 3% (in the direct line and between spouses and partners) or 7% (in other cases).
This also applies to the inheritance of a family company. After Brexit, the preferential regime of 3% will no longer apply, it will be the rate of up to 27% for inheritances in direct line and up to 55% for all others.
- The preferential rate of 5.5% for donations to a public institution of a legal entity governed by public law, a non-profit organisation, a private foundation or a foundation of public utility, etc. (Art. 188.8.131.52.1, §3 Flemish Tax Code) only applies if the beneficiary is established within the EEA.
This also applies to the reduced rate of 8.5% for bequests (Art. 184.108.40.206.1, §3 Flemish Tax Code) to a public institution of a legal entity governed by public law, non-profit organisation, private foundation or foundation of public utility. Paragraph 2 of this Article states that the preferential rate also applies to similar legal persons established under and subject to the legislation of another EEA Member State, and having their registered office, central administration or head office within the EEA.
After Brexit, institutions established in the UK may therefore no longer be able to benefit from these preferential regimes for donations and bequests.
- A contract to establish emphyteusis or a right of superficies, and for the transfer thereof in favour of a legal person similar to a non-profit organisation will normally be subject to a rate of 0.5% if the legal person is subject to the legislation of a Member State in the EEA and its head office is within the EEA (Art. 83, 3° of the Registration Duties Code). In all other cases, i.e. also in the case of the UK, the duty is set at 2%.
- Residents of the UK who are heirs, legatees or donees in a Flemish inheritance containing movable property will have to pay a deposit for payment of the inheritance tax (Art. 220.127.116.11.1 Flemish Tax Code). This will have undesirable repercussions in practice, since before the competent official has issued a certificate stating that all the provisions have been complied with, the seals may not be removed, the assets of the estate cannot be sold and no deed of distribution can be drawn up (Art. 18.104.22.168.1, paragraph 3, Flemish Tax Code).
- After Brexit, residents of the UK will be entitled to the longer declaration period to declare their estate in Belgium, which is 6 months for deaths outside the EEA instead of 5 months for deaths within the EEA (Art. 22.214.171.124.3, §2, Flemish Tax Code).
- The collection of inheritance tax is no longer suspended for two months if a legal person in the UK inherits a bequest subject to government authorisation (Art. 126.96.36.199.3, Flemish Tax Code). This obligation applies only to legal persons having their registered office, central administration or head office within the EEA.
Although the above list is purely illustrative, it would seem that the UK's exit from the EEA entails more disadvantages than advantages. The rates will go up, and for a resident of the UK who inherits a Flemish estate, the administrative formalities will become much more burdensome.
Whatever the consequences, our teams are closely following the changes. If you have any further questions, you can always contact our team.