Full text: Taxation of foundations in Europe

14 ? Deposits against consideration, such as the transfer of shares to a foundation – “administrative office” – are subject to a one-time fee of EUR 25. The consideration of the donors consists in the certificates issued by the foundation. ? In the case of deposits without consideration, clarification must be made on whether or not the transfer is a gift. In contrast to a gift, there is no “donative intent” (animus do- nandi) in connection with a deposit without consideration on the part of the donor. In the regions of Wallonia and Brussels Capital, a general fee of EUR 25 is charged on the de- posit without consideration of both movable and immovable goods. Gift tax The gift tax makes a clear distinction between the donor’s assets and the assets of the foun- dation14. The foundation is thus liable for the payment of the gift tax. In Flanders, the tax rate for gifts to private foundations is 7%. Gifts from an association or a public utility foundation are charged with a flat fee of EUR 100. Gifts to public utility foundations are taxed at 6.6% in Wallonia and Brussels Capital and at 7% in Flanders (Article 140 of the Belgian Transaction Tax Act). It is possible to avoid the gift tax by means of certifying the gift abroad, making hand to hand gifts or including a retraction clause in the foundation statutes when establishing the foundation. Such a clause ensures that upon achieving the foundation’s purpose, the assets go back to the donor.15 Pursuant to Article 33 Association and Foundation Act, any gift of more than EUR 100,000 must be approved by royal resolution. This amount is adjusted annually. The general formal requirements are also valid for gifts. The donor may deduct gifts of a value exceeding EUR 25 from his or her taxable income if the foundation serves a purpose that falls in the scope of Article 110 in connection with Arti- cle 104 of the Belgian Income Tax Act. This is for instance the case for foundations with cul- tural activities or serving the purpose of scientific research16. Inheritance tax Legacies of foundations are subject to inheritance tax, which is based on the value and the composition of the bequest. As a rule, the tax rate for third parties is applies. In Flanders, a tax rate of 8.8% is levied upon legacies of public utility foundations and private foundations according to Article 59 of the Belgian Inheritance Tax Law. 14 Cf. ibid, p 16. 15 Cf. ibid, p. 16. 16 Cf. Kocks (2007), p 688.

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