Newsletter Lexunion Nº16 – 4T 2018

Newsletter Lexunion Nº16 – 4T 2018

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We are glad to let you know that the last edition of the Newsletter of our network LEXUNION is now available.

It’s a free quarterly newsletter that deals with legal and tax developments in member countries of the Lexunion network, with the purpose to help french compagnies and persons clients of our network.

It can be downloaded on this link: Newsletter client – Lexunion 16-2018_EN-FR

BELGIUM____________________________________________________________________________

Online public sales site:Bidddit

Belgian notaries have been organising public sales since time immemorial in auction rooms and other public establishments. Always keen to be at the forefront of the legal professions, the Federation of Belgian Notaries took a step towards digitalisation in September 2018, and it is now possible in Belgium to buy and sell real estate online on the website Biddit.be, with the support and under the control of a notary of course.

This simple, ergonomic tool lets prospective buyers see directly what price category an asset is in, because a starting price is set for each offer. Connection to the site is possible using one’s electronic identity card, or via smartphone, with the “Itsme” application. Bids can be made manually or automatically up to a maximum amount that the person will have determined in advance and which only he or she knows. The online sale is particularly transparent, each bid made being visible to anyone consulting Biddit.be.

There is a period of 8 days in which to make bids. Once this time is up, the person knows directly if he/she was the highest bidder and will then be contacted by the notary to finalise the sale.

With online sales, you can become a homeowner in just a few weeks, far faster than with a conventional sale. InBiddit, a notary will already have handled all the procedures, administrative in particular, so that as a buyer or as a seller, you know immediately where you stand and what you are signing up to.

Online selling via Biddit is particularly attractive, but still engaging nonetheless. The notary knows each bidder and each bid they make engagethem in the sale. Amateurs are advised to prepare in the same way as for a traditional sale: plan an inspection of the house, know one’s budget limits and if it is necessary to take out a loan, making sure to contact the bank first, etc. For example, the specification that will be drawn up before any sale may, in some cases, include a condition precedent regarding credit.

All advice remains personalised, the guarantee of working in confidence and perfectly securely remains essential for the notary, and this at all stages of the online sale.

The notary plays a vital role throughout the online sales procedure, and is the guarantor of the transparency and security of the sales process.

Source : Notaire.be

SPAIN_______________________________________________________________________________

Right of non-Spanish resident companies to recover withholding taxes from 2004 to 2010

The Spanish Supreme Court has recently ruled that companies are not obliged to pay their withholding tax to the Spanish tax administration when collecting dividends from Spanish stock companies between 2004 and 2010.

The Supreme Court, in agreement also with the European Union Court, considers that it is discriminatory to make a distinction between foreign companies and Spanish ones, and thus confirms the right of foreign companies to recover their withholding tax, paid when collecting dividends from Spanish stock companies.

This limitation is a limitation on the free circulation of capital established by European Union treaties only because of the companies’ tax residency. We therefore welcome the position of the Spanish Supreme Court, and encourage companies to seek refunds if they were in this situation. ■

 

 

Newsletter Lexunion Nº15 – 3T 2018

Newsletter Lexunion Nº15 – 3T 2018

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We are glad to let you know that the 15th edition of the Newsletter of our network LEXUNION is now available.

It’s a free quarterly newsletter that deals with legal and tax developments in member countries of the Lexunion network, with the purpose to help french compagnies and persons clients of our network.

It can be downloaded on this link: Newsletter client – Lexunion 15-2018_FR_EN

GERMANY___________________________________________________________________

Judgement of the CJEU of 1 March 2018: German matrimonial regime and consideration of paragraph 1371(1) of the BGB as succession-related

The question as to whether paragraph 1371(1) of the Bürgerliches Gesetzbuch (Civil Code; ‘the BGB’), is to be regarded as relating to a succession regime or a matrimonial regime has been argued over inter partes for years. The CJEU has now put an end to this dispute.

In the terms of a judgement dated 1 March 2018, the Court of Justice of the European Union (CJEU) ruled that “Article 1(1) of Regulation (EU) No 650/2012 […] must be interpreted as meaning that a national provision, such as that at issue in the main proceedings, which prescribes, on the death of one of the spouses, a fixed allocation of the accrued gains by increasing the surviving spouse’s share of the estate falls within the scope of that regulation.”

The CJEU therefore ruled in favour of its being regarded as relating to a succession regime. As a result paragraph 1371(1) of the BGB, now applies only on the dual condition that 1) the spouses are married under the German legal regime and 2) the succession is subject to German law.

Paragraph 1371(1) of the BGB as it relates to the German legal regime of Zugewinngemeinschaft, a property regime of community of accrued gains, states that “If the property regime is ended by the death of a spouse, the equalisation of the accrued gains shall be effected by increasing the surviving spouse’s share of the estate on intestacy by one quarter of the estate; it is irrelevant in this regard whether the spouses have made accrued gains in the individual case.”In other words, there is no liquidation of the matrimonial regime as such: the succession is liquidated directly, increasing the surviving spouse’s share by a flat quarter. A real liquidation of the matrimonial regime, with a calculation of the share due, takes place only if the surviving spouse renounces the succession or has been disinherited (paragraph 1371(2) of the BGB).

In private international law, the question as to whether this provision is to be applied when the spouses were married under the German legal regime but the succession of the deceased spouse is subject to a law other than that of Germany has long been debated. It all depends on the classification adopted: if considered as matrimonial regime, the flat quarter applies since the deceased was married under the German legal regime; if considered as succession regime, it does not apply since the succession is subject to a law other than the German law.

The judgement handed down by the German Supreme Court (Bundesgerichtshof) on 13 May 2015 stressed the classification as matrimonial regime, which led to the application of paragraph 1371(1) of the BGB whenever the spouses were married under the German legal regime, irrespective of the law applicable to the succession.

This position is called into question by the CJEU, which rules in favour of consideration as succession-related because “that provision does not appear to have as its main purpose the allocation of assets or liquidation of the matrimonial property regime, but rather determination of the size of the share of the estate to be allocated to the surviving spouse as against the other heirs.” (Section 40 of the judgement).

Apart from this, its classification as succession-related allows the flat quarter to be included in the European Certificate of Succession, with all the effects described in Article 69 of Regulation No 650/2012. (Section 42 of the judgement).

FRANCE_____________________________________________________________________

1.- Entry into force of the real estate wealth tax (IFI)

With effect from 1 January 2018 wealth tax (ISF) was replaced by the IFI (Impôt sur la Fortune Immobilière or Real Estate Wealth Tax).

The switch to IFI changes the taxable base, which now consists only of real estate assets.

Real estate is understood in the broad sense and concerns not only properties held directly but also those held through companies (notably “SCI” property ownership and management companies) or through any other vehicles (notably life insurance).

Holding real estate assets, the notion of “predominantly real estate” has been abolished.

Real estate assets used for the company’s business remain exempt.

The thresholds and tax rates are the same as those applying previously for the ISF: only persons with real estate assets worth more than €1.3 million are subject to IFI. Rates are progressive, from 0.5% to 1.5%.

Certain anti-abuse measures have been introduced regarding the treatment of liabilities associated with acquisition:

  • Only debts relating to the acquisition, repair, maintenance, improvement, construction, reconstruction or enlargement of real estate assets and to taxes due by reason of the holding of real estate assets (other than those normally incumbent on the occupant) are deductible.
  • Certain debts are non-deductible or only partly deductible for determining the value of the shares of a company holding real estate assets: in particular debts contracted by the company with shareholders (current account), close relatives or companies or entities controlled by such persons. There are some exceptions allowing such debts to be deducted.
  • Interest-only loans called ‘crédits in fine‘, or bullet loans, are deductible each year only up to the total amount of the loan less an amount equal to the total amount of the loan times the number of years elapsed since disbursement and divided by the total number of years of the loan. This rule does not apply when the bullet borrowing is contracted by the company.
  • Deductible debts are capped for persons holding more than €5 million in real estate assets in France if deductible debts amount to more than 60% of this total.

The new tax rules may offer opportunities for non-residents, particularly when the acquisition is or has been made through an SCI:

  • If the financing is by way of contribution in current account before 1 January 2018, this can be deducted from the value of the shares subject to the IFI;
  • If the financing is by way of contribution in current account after 1 January 2018, this can be deducted from the value of the shares subject to the IFI on certain conditions (the purpose must not be mainly tax-related, and the current account advance must not serve to repay the bank borrowing that financed the acquisition).
  • If financing was carried out by bank borrowing: the shares of the SCI will be valued taking account of this borrowing.
  • In the event of the taxpayer’s selling assets to a company that he owns, specific tax rules limiting the deductibility of the debt apply.

2.- Signing of a new tax treaty between France and Luxembourg

On 20 March 2018, France and Luxembourg signed a new tax treaty aimed at avoiding double taxation as regards income and wealth tax.

This treaty implements the recommendations of the OECD and the measures of the BEPS plan.

The accent is on the fight against erosion of the tax base: the new treaty introduces numerous anti-abuse mechanisms.

It could come into force on 1 January 2019.

ITALY________________________________________________________________________

Ineligibility of the filing with the Italian Business Register of a capital increase decision of a limited liability company (SRL) to be subscribed partly in crypto currency.

The Court of Brescia, business section, in a judgement of 25 July 2018, rejected the appeal lodged by a limited liability company pursuant to Article 2436, paragraph 3 of the Italian Civil Code against the refusal of the notary to file with the Business Register a resolution to increase the share capital of the company by contribution in kind, among other things, of a certain number of units of a crypto currency.

The notary justified the refusal to register by noting how the volatility of virtual currencies does not allow “a concrete evaluation of the quantum destined to pay up the subscribed capital increase”, or to evaluate “the effectiveness of the contribution”.

The Court declined to take a position on the general admissibility of virtual currencies as assets for contribution to the capital of a limited liability company (an issue which remains open), focusing instead on the existence of the requirements set forth in Article 2464, paragraph 2 of the Italian Civil Code (being an asset subject to economic assessment), with regard to the particular crypto currency that the shareholders intended to contribute in the specific case.

Thus, the crypto currency specifically concerned shows, in the opinion of the Court, “self-referential” features incompatible with the level of diffusion and publicity that a virtual currency must have in order to aspire to hold an effective presence in the market.

SWITZERLAND______________________________________________________________

1.- Family

1.1. On 29 August, the Federal Council (executive) adopted a proposal for the partial reform of the succession law and submitted it to Parliament for decision.

Important change proposed: the part reserved to descendants would be reduced from ¾ to ½ of their intestate entitlement. Corollary: an increase in the freely disposable share of a testator’s estate.

1.2. The new provisions passed on 17 June 2016 by the Federal Parliament permitting, under national law, a person to adopt the child of his or her registered partner of either sex, entered into force on 1 January 2018. As for married couples, adoption is conditional in particular on the existence of a steady relationship that has lasted at least three years, and the adoptive parent must be at least 28 years of age.

2.- Companies

Swiss notaries may currently be in fear of losing their exclusive competence as regards so-called “simple structure” companies. The National Council, the first of the two legislative chambers, has agreed to dispense with the requirement for notarised deeds in this regard. The second chamber, the Council of State, has yet to pronounce, and its position seems much less clear. The notaries do hold one weighty trump card: trade registrars have come out against doing away with notarised deeds.

3.- Private international law

The Federal Council has still not finalised the draft law aimed at amending the federal law on private international law (LDIP in the French abbreviation) as regards “international succession law”, which it intends to submit to Parliament. This amendment has come about as a result of the entry into force of the EU Regulation on successions, with which the LDIP is supposed to be harmonised. That said, certain voices have called attention to the fact that Swiss law need not necessarily aim for “Euro-compatibility”, and that we must not forget all the other countries in the world where choice-of-law rules are sometimes different from those we are familiar with (notably nationality).

4.- Taxation

Switzerland is still not out of the woods as regards the revision of company taxation and the pensions system.

After two failed popular votes on these two subjects, parliamentarians championing compromise have proposed mixing the two subjects, which in themselves have nothing to do with one another. And this has been passed by Parliament! However, a referendum will no doubt be necessary, and obviously we do not know yet what the Swiss people will say in the last resort. Were they to reject the tax reform once again (particularly the abolition of certain favourable tax regimes), Switzerland would once again have serious problems with the European Union.■

Newsletter Lexunion Nº14 – 2T 2018

Newsletter Lexunion Nº14 – 2T 2018

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We are glad to let you know that the 14th edition of the Newsletter of our network LEXUNION is now available.

It’s a free quarterly newsletter that deals with legal and tax developments in member countries of the Lexunion network, with the purpose to help french compagnies and persons clients of our network.

It can be downloaded on this link: Newsletter client – Lexunion 14-2018_EN-FRr

GERMANY____________________________________________________________________________

1.- Succession

In matters relating to certificates of succession, national jurisdiction is now determined solely by EU Succession Regulation no. 650/2012. Such was the ruling of the Court of Justice of the European Union (ECJ) in its order of 21.06.2018 (C-20/17 – Oberle). In this case, the deceased, a French national, had been the owner of property located in Germany and France. Upon his death, his son asked a court of first instance in Berlin to draw up a certificate of succession for the property in Germany. The court declared its lack of jurisdiction based on Articles 4 and 15 of the aforesaid Regulation. Following an appeal, the court of appeal sought a preliminary ruling from the ECJ to determine whether the jurisdiction provided for by the Regulation also applied to national succession certificates. The ECJ answered in the affirmative: international jurisdiction on succession, including certificates of succession, is governed uniformly by EU Regulation no. 650/2012. The latter stipulates that the jurisdiction of the country of last habitual residence is competent to rule on his entire estate. Therefore, French courts alone had competence to draw up the certificate of succession.

The Regulation does not apply in Switzerland since it is not a signatory. As a result, when a Swiss national having fixed property in Germany dies in Switzerland, the German authorities will continue to demand the production of a certificate of succession issued by German courts in order to settle the part of the estate relating to property in Germany even though Swiss law is applicable to the succession.

 

2.- Taxation

  • Treatment of French-source dividends

Reacting to two fiscal court judgments (Cologne of 31.08.2016 and Munich of 13.03.2017), the German tax authority published its decision to amend as from 2018 the taxation of French-source dividends received by German shareholders owning a stake of more than 10%, in a circular dated 13.03.2018, as from 2018. From now on, the rule of § 8b para. 5 KStG (Corporate Tax Act) providing for the total exemption of dividends from tax except for a 5% share of costs and charges will apply to French-source dividends whilst, due to its interpretation of Art. 20, para. 1 of the Franco-German Tax Agreement, this 5% sharewas only included previously when the actual costs and charges exceeded 5% (OFD NRW [Regional Tax Office North Rhine-Westphalia], 13.03.2018 – S 2750a-2014/0001-St 131).

 

  • Instruction of 20.04.2018

The German tax authority published an instruction dated 20.04.2018 in which it fixes the administrative principles applicable to the matter of determining whether a transaction carried out between a shareholder and the company can qualify as a gift and is, therefore, subject to the gift taxation system. In particular, it specifies that a 50% shareholder who transfers assets to the company without receiving the full consideration therefore does so by making a – taxable – gift to their co-shareholder (see Instruction no. 3). Likewise, a shareholder leaving the company and waiving full or partial payment of an indemnity does so by making a – taxable – gift to their co-shareholders – (see Instruction no. 2.5).

 

SWITZERLAND________________________________________________________________________

Within the framework of a revision of Swiss Company Law, the Swiss National Council (that is, one of the two Parliamentary chambers at Federal level) intends to introduce quotas for women of at least 30% on Boards of Directors and 20% in company management. However, nothing has been done so far as the Council of States still has to pronounce on the issue.

Following the resounding rejection of company taxation and old-age pension reforms, during referendums, the Council of State wishes to push the idea of a draft agreement that combines the two issues. It simply needs to convince the National Council and the Swiss people of the merits of this idea, in the knowledge that many political and economic players have already expressed their condemnation of such an agreement.■