The District Court of Noord-Holland recently ruled (in a non-published judgment) that the acquisition of shares in a BV with a real estate portfolio by way of a gift to a successive daughter is exempt from transfer tax pursuant to legislative history and case law.
While personal income tax and gift tax facilities ("the business succession scheme") were already in place for the transfer of a company within a family, immediate family members who acquire shares in a company, including the associated real estate, can now also claim a transfer tax exemption. Given that based on the literal statutory text, the business succession exemption applies only to enterprises subject to personal income tax (such as a sole proprietorship), transfer tax is, as a rule, payable when an enterprise with a real estate portfolio in the form of an NV or a BV is transferred. However, in the judgment in question the District Court of Noord-Nederland ruled that the transfer tax exemption also applies in the event of business succession where shares in a BV are transferred.
To be eligible for the exemption, the business successor must be an immediate family member (brother/sister, children, grandchildren or their spouses) and shares in a material enterprise must be transferred. This is the case if the real estate portfolio is conducive to the enterprise whose operation will be continued in full.
The District Court of Noord Holland ruled that based on legislative history, case law and the structure of the law, situations that are essentially the same must also be treated the same for tax purposes. If we were to ignore the BV structure, the acquisition of the real estate portfolio would be exempt from transfer tax. As such, the acquisition of shares in a BV with a real estate portfolio may not result in the levy of transfer tax, if the acquisition of the real estate would have been exempt from transfer tax if the situation concerned an enterprise subject to personal income tax.