LEXUNION Newsletter Nº1 – 1t 2015

We are glad to let you know that the first 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 1-2015 (ENG_FR)

GERMANY_________________

1.- On 03.12.2014 the federal government adopted a draft law on the right to international inheritance and on the modification of provisions relating to the certificate of inheritance and other provisions. The draft law aims first and foremost to apply the European regulations dealing with matters of inheritance ((EU) Regulation n° 650/2012 of 04.07.2012). Due to new procedural regulations concerning the new European certificate of succession, procedural provisions with the aim of obtaining a German certificate of succession have been modified. Moreover, required consequential amendments as well as one-time changes have been made to other laws, notably concerning procedural costs.

2.- In a judgement made on 17.12.2014(1 BvL 21/12), the Constitutional Court deemed certain tax allowances offered as part of the transfer of business assets to be unconstitutional and notably called for a distinction to be made between small and medium-sized businesses on the one hand, and large businesses on the other.

BELGIUM__________________

1.- E-registration

Since 1 January 2015, each notarial deed must be presented in paperless format to the record and, where required, to the mortgage disclosure formality.

Therefore, except in the case of a few exceptions, Notaries public can no longer send their official records to the administration by mail.

2.- V-label: Flemish Succession Duties Code

The Flemish region has decided to standardise their tax legislation and has integrated the Succession Duties Code into their overall Fiscal Code. During this integration, several major changes were made to this legislation containing the following principles:

  • Elimination of the procedure of prior expert appraisal for all inheritances subject to Flemish administration.

As a reminder, prior expert appraisal is the process by which the heirs and the receiver of registry fees jointly name an expert in charge of appraising the estate constituting the inheritance before the declaration of succession is filed. The expert’s conclusions will create permanent ties between the two parties, and the heirs must reclaim the expert’s appraisal in their statement. If the estate is sold at a later date at a higher price, no additional duties shall be sustained; however, if the received price is lower, the heirs shall pay duties on the amount they did not receive.

  • In the absence of a declaration of succession, automatic taxation 10 months after the death based on elements in the administration’s possession (tax increase of 20 {5a123fd2ff0edecec35de014470138a8d457280103a9b9810af819076914f099})
  • The deadline for filing a declaration of succession is four months for all declarations (extensions shall no longer be made in the case of deaths abroad)
  • Elimination of the Fair Market Value procedure
  • The administration has a 5-year collection and uniform recovery deadline
  • Late-filing fees on declarations of succession: automatical increase of duties to be paid

As a reminder, a declaration is considered to be subject to the Flemish region if the deceased lived in the Flemish region for more than two and a half years during the five years prior to his/her death.

FRANCE___________________

CAPITAL GAIN ON REAL ESTATE MADE BY A NON-RESIDENT (ART. 244 BIS A OF THE FRENCH TAX CODE)

1°) Income  tax :

Starting on 1 January 2015, capital gains made by a non-resident of France during the transfer of real estate located in France are subject to a rate of 19{5a123fd2ff0edecec35de014470138a8d457280103a9b9810af819076914f099}, regardless of the assignor’s country of residency.

For transfers that took place before 1 January 2015, those that occurred directly shall be distinguished from those that occurred through a semi-transparent private investment company. For transfers made directly, requesting that a rate of 19{5a123fd2ff0edecec35de014470138a8d457280103a9b9810af819076914f099} be applied instead of a rate of 33.33{5a123fd2ff0edecec35de014470138a8d457280103a9b9810af819076914f099} shall only be considered, as in the past, as part of the litigation context on the basis of an equal treatment clause of an international convention. For transfers occurring through a private investment company, a contentious appeal can be submitted citing the judgement made by the Council of State in 2014 which determined that the rate at 19{5a123fd2ff0edecec35de014470138a8d457280103a9b9810af819076914f099} should apply for resident partners of a country outside the EEA, when the possession had been held by a French private investment company that is not subject to company tax (IS). The claim period expires on 31 December of the second year following the transfer.

2°) Social security deductions.

The « Ruyter » judgement made by the CJEU on 26 February 2015 following a preliminary ruling presented to the French Council of State, specifies that social security deductions of 15.5{5a123fd2ff0edecec35de014470138a8d457280103a9b9810af819076914f099} applied by French law to investment income are social security contributions according to (EEC) Regulation n° 1408/71. However, under that Regulation, citizens of the European Union only pay their social security contributions in the country in which they benefit from their social security protection. The Council of State should, in due course, confirm that it is not possible for France to subject non-residents’ real estate income and capital gains on real estate to social security deductions.

The EU regulations are self-executing under domestic law; the disputed claims (being destined to receive social security deduction reimbursement, within the limitation period, on the basis of their illegality), as of now, can consequently be filed without waiting for the Council of State’s decision. For any questions or for any appeals you would like to lodge for your clients, please contact the following people by phone (at 00.33 1 44 01 25 25) or by e-mail:

Pascale SANSEAU: pascale.sanseau.75237@paris.notaires.fr),
Bertrand SAVOURE: bertrand.savoure@paris.notaires.fr),
Pascal JULIEN SAINT-AMAND: pjsa@paris.notaires.fr

ITALY____________________

CONVENTION  OF ASSISTED NEGOTIATION

Decree nº 132 of September 12th, 2014 implemented by Law nº 132 of November 10th, 2014, introduced into Italian law the institution of the « Convention of negotiation assisted by one or more lawyers (art. 6) and before the civil registrar (art. 12) » in the fields of separation, divorce and changes in theconditions of separation and divorce. This convention described by articles 6 and 12 of the law, consists of an alternative to ordinary legal and conflict resolution procedures with the goal of reducing the workload of the Italian courts, saving time and shortening delays in ordinary legal procedures.

Convention of assisted negotiation (art. 6):

Spouses, with or without children, can consensually sign a convention of negotiation with the assistance of at least one lawyer per party. In the absence of such an agreement it will be necessary to proceed through the ordinary legal procedure. If the agreement contains acts transfering, declaring or modifying real estate, other property rights or any act subject to registration in the public record, in order to proceed to the registration of said agreement, it must be certified by a public official authorized to do so (eg. Notary).

The agreement, provided with clearance or authorization by the Public Prosecutor is transmitted to the appropriate civil registrar for the necessary registrations.

Separation, divorce and modifications of separation or divorce conditions before the civil registrar (art. 12):

The agreement can be signed before the Mayor (civil registrar), in the Municipality where the marriage certificate is filed or registered. Unlike the procedure ex art. 6, the services of a lawyer are not required, the agreement signed thusly has the same effect as a judicial action. This procedure may only be used if the couple does not have children and in the absence of terms of real estate transfer.

THE NETHERLANDS__________

LIFE INSURANCES BENEFITS FORFAMILIES OF FLIGHT MH17 VICTIMS

On the July17th, 2014 Malaysia Airlines flight MH17 crashed in the eastern part of Ukraine. The air disaster was most likely caused by an impact with an anti-aircraft missile. In this plane crash a total of 298 people were killed, including 196 Dutch nationals. In handling the estates, Dutch notaries are confronted with the question of whether life insurance benefits to the heirs of the victims should or should not be used to pay off debts accruedon the estate when these debts cannot be paid from the estate itself, in caseswhere the amount debt exceeds the value of the assets. Legally speaking it makes for an interesting discussion, however the situation remains profoundly sad.

The right to benefit from a life insurance policy is normally that of the persons named as beneficiaries in the policy and who are therefore not part of the inheritance. However, the Dutch inheritance law provides that benefits of a life insurance policy are so-called quasi-legacies and bequests. This means that they can only be distributed to the persons named as beneficiaries  after all other debts of the estate have been paid.

What do you think is fair? For example, should  the surviving partner of a victim keep the benefit of the life insurance policy for himself, or must all the debts of the estate be paid, first while a surviving partner may only benefit from life insurance after all debts of the estate are paid? Relatives of the victims of the MH17disaster believe that they should be able to keep the benefits for themselves and that the benefits need not be used to pay off the debts of the estate. That creditors were just unlucky… (as all are in this tragedy). What do you think is reasonable?

SPAIN____________________

REFUND OF AMOUNTS PAID BY NON-SPANISH RESIDENTS AS INHERITANCE AND GIFT TAX IN SPAIN

A Judgement rendered by the ECJ (EU’s Supreme Court) on September 3rd, 2014, stated that the Kingdom of Spain had failed to comply with the obligations laid down by the European Regulations concerning establishing differences between the fiscal treatment of inheritances and gifts in Spain for residents and non-residents. It was considered as discrimination against those who are “non-residents” of Spain, given that their treatment for taxation purposes was generally worse than that applied to residents, which contravenes the principle of free movement of capital in the European Union.

This Judgement entails an obligation for the Kingdom of Spain to amend (which has recently been done), its Inheritance and Gift Tax laws regarding the treatment therein of non-residents of Spain when the latter are citizens of countries in the EU or the European Economic Area.

As an immediate effect of the judgement, some taxes paid by non-Spanish residents must be refunded by the Spanish government.

Our firms in Spain also believe that the Judgement of the ECJ does not only take effect for future cases but it also has full retroactive effect; and it is binding on the courts and Public Administration of the State against which it has been issued.

In the present case, however, the discrimination arises from the application of the different legislations by the 17 Autonomous Regions of Spain which, alone, (also among those who are residentsof Spain) differ widely with regard to the application of these taxes.

For a tailor-made calculation of the amounts to be refunded, it must be studied on a case-by-case basis. Please do not hesitate to contact any of our Spanish offices all over our country  www.lexunionspain.com to analyze your particular situation in regard to this issue.

SWITZERLAND_____________

1.- On 24 February 2015, Switzerland and Italy signed a tax agreement that put an end to years of complicated relations between the two countries. This agreement is essentially a protocol that modifies the convention against double taxation that conforms to the new OECD norms for this matter.

2.- On 30 April 2015 in Lausanne, the swisNot network and the University of Lausanne’s Corporate Law Centre (CEDIDAC) are co-organising a day of further education dedicated to business law. A few of the contributions, that will shortly be published by swisNot, will be presented for the event on themes like quorums for assemblies, the concept of « close relation » as part of the repossession of goods concerning the creation of companies, the « liquidation privilege » in the event the titles are sold, the ruling against Fat-Cat Payouts, capital reduction and stabilisation, and finally how real estate profits are treated fiscally.