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In a Circular dated 1 December 2010 (Circular AOIF 70/2010, Ci.
RH. 81/600.928), the tax administration provides guidance on the
tax return filing obligations, the tax assessment and the tax
collection after a merger or split-up.
Filing obligations
In the cases where the transaction results in the dissolution of
a company without liquidation, the acquiring company is obliged to
file a tax return for the dissolved company relating to the period
until the effective date of the transaction. The competent tax
authority of the dissolved company remains competent for the
verification and assessment of the income of the dissolved company.
The filing must be done within one month after the date the
shareholders of both companies have formally agreed to the
transaction, and in any case no later than six months after the
effective date of the transaction.
Tax assessment
The tax assessment of the dissolved company will be addressed to
the acquiring company within the normally applicable time
periods.
Tax collection in case of a split-up
In the case of a split-up, the collection of taxes from each of
the acquiring companies is based on the pro rata part of
the net assets of the split-up company allocated to each of the
acquiring companies, unless the split-up deed provides otherwise.
The tax administration therefore recommends that in the case of a
split-up the acquiring companies provide the tax authorities with
the following information: (i) their respective part of the tax due
by the split-up company (in principle based upon the acquired net
assets), and (ii) their respective bank account number. Finally,
the tax administration adds to the circular a standard form to be
used for that purpose.
Ruling Commission – "Back to
Business"
On 18 October 2010, the Belgian supreme administrative court
(Raad van State/Conseil d'Etat) annulled the
appointment of three of the six members of the Belgian ruling
commission (See, this Newsletter, Volume 2010, No. 10,
p.15). As a result of this annulment, the ruling commission
could not validly take any advance decisions. This created
uncertainty which could discourage potential foreign investors.
Although resigning Minister of Financial Affairs, Didier
Reynders, confirmed in October 2010 that a solution would quickly
be found to ensure the continuity of the ruling practice, the
matter proved to be rather politically sensitive. On the one hand,
it was argued that the appointment of members of the ruling
commission was too delicate for a resigning government that can
only deal with current affairs. On the other hand, the relationship
between the ruling commission and the tax administration was
brought into question. Indeed, there have been tensions between the
two institutions in cases where the tax administration intended to
open a tax investigation with respect to companies that had already
been granted a ruling.
A solution to the current impasse has now been found. A number
of agreements have been entered into by and between the ruling
commission and the tax administration and have been subsequently
confirmed by the Council of Ministers. First, it has been agreed
that the members of the ruling commission will be reappointed.
Second, there will be more communication between the ruling
commission and the tax administration, which means, inter
alia, that every decision of the ruling commission will need,
in principle, a preliminary non binding advice from the tax
administration.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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