LEXUNION Newsletter Nº5 – 1T 2016

We are glad to let you know that the 5th 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 5-2016_EN_FR

 

BELGIUM______________________________________

Registration fees in the Walloon region – Sale fee – Acquisition of a residence

From 1 January 2016, purchase of a property located in the Walloon region and used in whole or part for residential purposes is subject to a tax rate of 15{5a123fd2ff0edecec35de014470138a8d457280103a9b9810af819076914f099} (instead of 12.5{5a123fd2ff0edecec35de014470138a8d457280103a9b9810af819076914f099}) if the buyer (private individual or legal entity) holds 33{5a123fd2ff0edecec35de014470138a8d457280103a9b9810af819076914f099} or more of the full ownership or usufruct of two other residential buildings, wherever in the world they may be located.

This rate also applies to any transfer of rights in rem which were previously taxed at 12.5{5a123fd2ff0edecec35de014470138a8d457280103a9b9810af819076914f099} if the buyer fulfils the criteria of ownership of two other properties.

 

ITALY_________________________________________

Same-sex marriage and registered partnerships in Italy – government bill

The Italian Parliament plans to complete the process that should lead to approval of the so-called “Cirinnà bill”, which for the first time in Italy will regulate the rights and obligations of same-sex couples who want to have a civil union and of heterosexual and same-sex couples who do not wish to get married, but only to register their partnership.

The bill is divided into two parts and 23 articles: the first part introduces into the Italian legal system the institution of a civil union between persons of the same sex as a « specific social formation », pursuant to art. 2 of the Constitution, while the second part governs registered partnerships, both same-sex and heterosexual.

Civil union is therefore a new institution, reserved for same-sex couples and different from marriage (regulated by art. 29 of the Constitution) but at the same time comparable to it.

An aspect which is still highly controversial politically is the adoption of stepchildren (the possibility for a civilly married same-sex couple to adopt the son or daughter of the spouse): the bill does not in fact allow either the adoption of children who are not children of one of the spouses or surrogacy.

The second part of the law concerns the recognition of the registered partnership between persons of the same sex or of different sex. The registered partnership is recognised for couples who live together without marrying or entering into a civil union. Cohabitees have the same rights as a spouse in the event of the illness, imprisonment or death of one of them.

Each registered partner may appoint the other as his/her representative in case of illness or death. If the partner who owns the house dies, the other partner has the right to live in the house for another two years or for the period of cohabitation, if more than two years, but in any case no more than five years. If the children of the couple or the children of one of the partners are living in the house, the partner who survives the death of the other is allowed to stay in the house for at least three years. The surviving registered partner is entitled to succeed the other in the lease, if the house is rented rather than owned. Registered partners may enter into a cohabitation agreement in order to regulate the property issues between them.

The registered partner agreement can be dissolved by agreement of the parties, by unilateral withdrawal, by marriage or civil union between registered partners or between one of the registered partners and another person and by the death of one of the parties. In case of dissolution of the agreement, the judge may recognise the right of one of the two registered partners to maintenance in proportion to the duration of their cohabitation.

 

SPAIN_________________________________________

Inheritance by succession agreements no longer to be taxed in some territories in Spain

A recent ruling by the Spanish Supreme Court (9-Feb-2016) has established that inheritances received via succession agreement (“pacto sucesorio”) inter-vivos are not taxable on personal income tax (“Impuesto sobre la Renta de las Personas Físicas”) as a return on  capital, in those Spanish territories that have their own civil law, such as Galicia, Catalonia or the Basque Country, among others. Until now, such inheritances were fully taxed.

As you know, these succession agreements are forbidden under the main Spanish Legal Code, but not in Galicia, the Basque Country, Valencia, Balearic Islands, Aragon and Catalonia.

The Spanish Supreme Court concludes that, as a succession agreement, these transactions are free transmissions “mortis causa”, covered by article 33.3.b of the Spanish Personal Income Tax Act, and so are not considered to be a capital or wealth gain.

 

SWITZERLAND__________________________________

Preliminary draft revision of the law of succession

The Swiss Federal Council recently launched a consultation procedure and submitted a preliminary draft revision of the law of succession. Among other measures, the following amendments concern the hereditary reserve of legal heirs:

  • Reduction of the hereditary reserve of descendants from ¾ to ½ (of their legal right of succession)
  • Reduction of the hereditary reserve of the surviving spouse (or partner) from ½ to ¼ (of their legal right of succession)
  • Abolition of the father and mother hereditary reserve.

It should be noted that following the entry into force of the European Regulation on succession law, the Swiss legislator is examining possible adjustments to the Federal Act on private international law on succession, with a view to eliminating certain discrepancies between the two texts. ■