By applying the VVPRbis regime, SMEs can distribute dividends at a rate of 15% subject to the following conditions:
- Dividends arise from new registered shares
- New shares issued by means of a paid-up cash contribution as from 1 July 2013
- The taxpayer has held these registered shares in full ownership without interruption as from the capital contribution
Since the entry into force of the new Code on Companies and Associations (CCA) on 1 May 2019, a minimum capital is no longer required for new companies, with the exception of the NV (public limited company). In practice, this led to a number of ambiguities regarding the interpretation of the conditions of application of the VVPRbis regime.
Entry into force of the CCA
The reduced withholding tax can only be applied if the cash contribution is fully paid up. In practice, it is now assumed that the contribution must be fully paid up at the time of the distribution of the dividend.
But what about a bvba (private limited liability company) of which the capital was only partially paid up and which is converted into a private limited company without capital and thereby also exempts its original contributors from paying up the initial capital and furthermore reduces the capital to, for instance, 1 euro?
Can this private limited company benefit from the favourable regime? According to the ruling committee, it can.
Paying up
According to the government, however, the legislator never intended to grant the reduced withholding tax under the above mentioned conditions. Hence, the Council of Ministers recently approved a draft bill in second reading which aims to put an end to this practice.
This will add the condition that the VVPRbis regime can only be applied if the amounts subscribed at the time of the distribution of the shares are fully paid up. This condition therefore implies that the transformed bvba from our example will no longer be able to benefit from the VVPRbis regime.
However, the preliminary draft bill provides for a transitional regime for companies that have implemented an exemption from paying up the subscribed shares since 1 May 2019 and the date of publication of the new rules. These companies can still qualify for the VVPRbis regime if they carry out a capital increase in cash that brings the contribution back to the level prior to the exemption from fully paying up. The increase in capital may not be accompanied by the isue of new shares and must take place before 31 December 2022.
According to the Minister of Finance, the contribution should only be increased by the amount for which the company has granted exemption from full payment.
Waiting period
The preliminary draft bill also changes the time at which the waiting period starts before the reduced withholding tax can be applied. It also reinforces the regulation on this point. The reduction in withholding tax would only apply to dividends resulting from the profit distribution of the second tax year and subsequent “after fully paying up the amounts subscribed to at the time of establishment or increase in capital”. Hence, the new waiting period will only start at the time of fully paying up.
Conclusion
The new rules will apply to dividends distributed as from 1 January 2022 and therefore it seems wise to us to anticipate them already.
Do you have any specific questions about these new changes? Do not hesitate to contact us. Our team of experts will be happy to help you.