Since 1 October 2012, its has been possible to agree to entirely postpone the obligation to pay up the shares issued upon the incorporation of a B.V. or at any later date. The shares need not be paid up until the B.V. requests such payments. Before 1 October 2012, shareholders were obliged to pay up at least 25% of the par value of their shares on the date they were acquired. Partly as a result hereof, the joint and several liability of the board of managing directors for acts performed on behalf of the B.V. before the paid up part of the capital equals at least the minimum amount of capital required by law no longer exists. These changes may seem attractive, but might have (adverse) legal and tax consequences.
For example, an agreement between a shareholder and a B.V. that stipulates that the shareholder may pay up the shares at a later date will terminate by operation of law if the B.V. is declared bankrupt. The company’s claim will become immediately due and payable with effect from the date of that declaration. Furthermore, the obligation to pay up shares cannot be evaded by transferring them. Former shareholders remain jointly and severally liable towards the B.V. for paying up the shares even after those shares have been transferred to a third party. In addition, a B.V. is prohibited from repurchasing shares that have not been fully paid up. Any such acquisition is null and void.
In the event the shares have not been (fully) paid up, this might have consequences for the application of the participation exemption (deelnemingsvrijstelling) and the fiscal unity (fiscale eenheid) as both facilities use the paid-up part of the capital as a criterion. The participation exemption can only be applied if a parent company holds at least 5% of the shares in the capital of a subsidiary and those shares are paid up. The same applies to the fiscal unity, which requires a parent company to hold at least 95% of its subsidiary’s capital and the subsidiary’s shares to be actually and fully paid up.
It may seem like an attractive option, not paying up the shares in a B.V., but this could have both legal and tax consequences. Caution is advisable in such situations and obtaining tax advice is therefore recommended.