A circular of 19 July 2012 deals with, among other things, this type of property transaction.
In the June 2012 edition of our newsletter, we set out the new anti-abuse provisions enacted by the law of 29 March 2012, effective as of 1 June 2012, and their impact on “split-sale” transactions, both past and future. [hyperlink]
We wrote inter alia : “[a]t this point in time, the overall market sentiment is that new property transactions may no longer be structured as split sales and indeed the Ruling Commission, for several months, has put on hold all tax ruling applications bearing on split-sale transactions.”
The tax authorities have now officially confirmed their point of view on this type of transaction. Indeed, on 19 July 2012, it issued a Circular (Nr 8/2012) containing two lists of transactions : the first one is a “white list” (transactions that are accepted by the tax authorities insofar as they are not part of a scheme comprising several transactions), and the second one is a “black list” (transactions regarded by the tax authorities as a tax abuse unless the taxpayer is able to demonstrate that the transaction in question was justified by reasons other than tax evasion).
This “black list” includes mainly succession-planning transactions. However, a reference is also explicitly made to split-sale transactions to the extent the entities involved on the buyer-side are affiliated.
It is now clear that the split-sale structure that was so popular in the Belgian commercial real estate market during the past decade may no longer be used for future property transactions. In a normal context, it will indeed be very difficult for a taxpayer to show that such a structure can be justified by reasons other than tax evasion.
It is nonetheless worth noting that split-sale transactions involving unaffiliated entities are not black-listed by the tax administration.