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11 DECEMBER 2008. - An Act to amend the Income Tax Code 1992 with a view to aligning it with Council Directive 90/434/EEC of 23 July 1990 on the common tax regime applicable to mergers, splits, partial splits, inputs of assets and exchanges of shares of different member states as well as the transfer of a statutory seat of an ESA or an ESC of one Member State to another, 2005

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We scan the following:
PART 1^er. - Introduction
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act provides for the transposition of Council Directive 90/434/EEC of 23 July 1990 on the common tax regime applicable to mergers, scissions, partial splits, intakes of assets and exchanges of shares of different member states, as well as to the transfer of the statutory seat of an SE and or an ESC of one Member State to another, as amended by Directive 2005/19/EC of the Council of the Council of 17 February 2005.
This Act extends mutatis mutandis the provisions of this new directive to purely national operations and makes various other improvements.
PART 2. - Income Tax Code 1992
Art. 3. In Article 2, § 1^er, 5°, of the Income Tax Code 1992, replaced by the Act of 10 August 2001 and amended by the Act of 15 December 2004, a b)bis is inserted, as follows:
"b)bis. Intra-European society: any society of a member state of the European Union:
- not a resident corporation,
- which has a legal form referred to in the annex to Council Directive 90/434/EEC of 23 July 1990 concerning the common tax regime applicable to mergers, splits, partial splits, asset contributions and exchanges of shares of different member states and to the transfer of a statutory seat of a SE or a SCE from one Member State to another, as amended by Council Directive 2005/19/
- which, according to the tax legislation of a Member State of the European Union, other than Belgium, is considered to have in this State its tax domicile without being considered, under a double taxation agreement concluded with a third State, as having its tax domicile outside the European Union, and
- that, without the possibility of an option and without being exempted, is subject to one of the taxes similar to the taxation of the companies listed in section 3, c), of the above-mentioned directive; "
Art. 4. In section 45 of the same Code, replaced by the Act of 22 December 1998 and amended by the Acts of 10 March 1999, 16 July 2001, 5 December 2004 and 27 December 2006, paragraph 1^er, is replaced as follows:
« § 1^er. The surplus-values that relate to shares or shares of resident companies or intra-European companies are also exempt:
1° where these surplus-values are obtained or recognized on the occasion of a merger by absorption, a merger by constitution of a new society, a split by absorption, a split by constitution of new societies, a mixed split, an operation assimilated to the split or the adoption of another legal form, carried out either in accordance with Articles 211,^er, or 214, § 1^ersimilar provisions in the other Member State of the European Union, to the extent that the operation is paid by new shares or shares issued for that purpose;
2° that are realized on the occasion of the contribution of these shares or shares to a resident corporation or an intra-European corporation in exchange for new shares or shares issued by the beneficiary company of the contribution, by which the beneficiary corporation acquires in total more than 50 p.c. of the voting rights in the corporation whose shares or shares are made, or by which, if it already has a majority of the voting rights, it increases its share
In such eventualities, the surplus-values or less-values that relate to shares or shares received in exchange are determined in respect of the acquisition or investment value of shares or shares exchanged, possibly increased by the surplus-values imposed or decreased by the less-values admitted both before and after the exchange. For the application of Article 44, § 1^er, 2°, shares or shares received in exchange are expected to have been acquired on the date of acquisition of shares or shares exchanged.
In the event of a split, the net tax value of the shares or shares received from each of the beneficiary companies is proportional to the real value of the contributions received by the recipient companies in relation to the real value of the split corporation. In the event of a transaction assimilated to a split, the total of the net tax value of the shares or shares of the split corporation, and of the shares or shares obtained, is equal to the net tax value that had the shares or shares of the split corporation immediately before the transaction assimilated to the split. The net tax value of shares or shares obtained in exchange is proportional to the actual value of the contribution in relation to the total real value of the corporation stained before the transaction. In this regard, the transaction relating to a scission-like operation is assimilated, in the leader of the shareholder, to the exchange of shares or shares in the event of scission.
Exemption under paragraph 1^er only applies if the operation meets the requirement of section 183bis. »
Art. 5. In section 46 of the Code, replaced by the Act of 28 July 1992 and amended by the Acts of 21 December 1994, 30 January 1996, 16 April 1997, 22 December 1998, 14 January 2003, 27 December 2004 and 25 April 2007, the following amendments are made:
(a) in the introductory sentence of paragraph 1^er, the words "including any surplus-values obtained or found due to or on the occasion of the complete and final cessation of one or more branches of activity", are inserted between the words "in article 28, paragraph 1^er, 1°, and the words "are completely but temporarily exempted:";
(b) in paragraph 1^erParagraph 3 is replaced by the following:
"Paragraph 1^er, 2°, is applicable only as long as:
1° the company that receives the contribution either a resident or intra-European corporation;
2° the operation shall be carried out in accordance with the provisions of the Code of Societies on this matter and, where applicable, in accordance with the provisions of the law of similar societies in another Member State of the European Union which apply to the intra-European society bringing or beneficiary;
3° the operation meets the requirement of section 183bis. »;
(c) in paragraph 1^erParagraph 4 is replaced by the following:
"When the recipient of the contribution is an intra-European corporation, the exemption referred to in paragraph 1^er only applies to the goods brought by the contribution that are assigned and maintained in a Belgian establishment referred to in Article 229, § 1^er, which in Belgium has the beneficiary company of the contribution of the fact or not of that contribution, and which contributes to the realization of the results of that institution which are taken into consideration for the taxable basis under section 233. »;
(d) in paragraph 2, paragraph 1^er, the words "research and development tax credits" are inserted between the words "investment deductions" and the word "lesser-values".
Art. 6. In section 90 of the Code, amended by Royal Decrees of 20 December 1996, 20 July 2000 and 13 July 2001 and by the Acts of 10 August 2001, 15 December 2004, 27 December 2005, 25 April 2007 and 24 July 2008, the following amendments are made:
(a) in 1°, the words ", 9°" are repealed;
(b) 9° is replaced by the following:
"9° the surplus-values on shares or shares that:
- either, are carried out on the occasion of the assignment as expensive of these shares or shares, outside the exercise of a professional activity, excluding normal management of a private heritage;
- is carried out on the occasion of the assignment in a costly manner, outside the exercise of a professional activity, to a legal person referred to in article 227, 2° or 3°, whose head office, principal institution or office of direction or administration is not located in a Member State of the European Economic Area, of shares or shares representative of social rights of a resident corporation "
Art. 7. Section 94 of the Code is replaced by the following:
"Art. 94. When in the 12-month period before the acquisition of shares or shares by a legal person referred to in Article 227, 2° or 3°, whose head office, principal institution or head office or administration is not located in a Member State of the European Economic Area or which is not, according to the tax legislation of a Member State of the European Economic Area, considered to have in that State its place »
Art. 8. Section 95 of the same Code is replaced by the following:
"Art. 95. Notwithstanding Article 90, 9°, are temporarily exempted the surplus-values on shares or shares of resident or intra-European companies to the extent that they are carried out on the occasion of a merger, splitting, an operation assimilated to a merger or split, a transformation of European companies or the contribution of these shares or new shares in a resident corporation or an intra-state corporation:
- whether the shares or shares are exchanged for new shares or shares issued by the beneficiary company of the contribution with, eventually, a cash relief that does not exceed 10 p.c. of the nominal value, or in the absence of a nominal value, of the accounting pairs of new shares or shares issued;
- and that the beneficiary corporation acquires a total of more than 50 p.c. voting rights in the corporation whose shares or shares are made, or if it already has a majority of the voting rights, it increases its participation.
The exemption is only applicable if the operation meets the requirement of section 183bis.
The maintenance of the exemption is conditional on the condition that the taxpayer produce evidence that it is still in possession of the shares or shares received and that the shares have not been subject to a total or partial refund, in support of its tax returns of the physical persons subsequent to that during which the transaction took place.
The realized surplus-value or less-value is equal to the difference between the actual value of the shares or shares received and the acquisition value of the shares or shares initially held. It is considered a taxable income of the taxable period in which the condition of detention is no longer fulfilled. »
Art. 9. Section 96 of the same Code is replaced by the following:
"Art. 96. As long as the temporary exemption referred to in section 95 is applicable, sections 90, 9°, 94 and 95 apply to shares or shares received in exchange, on the occasion of a merger, a split, an operation assimilated to a merger or split or a transformation of companies, as if the exchange had not taken place.
In this case, the surplus-values or less-values that relate to shares or shares received in exchange are determined in respect of the acquisition or investment value of shares or shares exchanged, possibly increased by the surplus-values imposed or reduced by the less-values admitted both before and after the exchange. For the purposes of Article 90, 9°, shares or shares received in exchange are assumed to have been acquired on the date of acquisition of shares or shares exchanged.
In the event of a split, the net tax value of the shares or shares received from each of the beneficiary companies is proportional to the real value of the contributions received by the recipient companies in relation to the real value of the split corporation. In the event of a transaction assimilated to a split, the total of the net tax value of the shares or shares of the split corporation, and of the shares or shares obtained, is equal to the net tax value that had the shares or shares of the split corporation immediately before the partial split. The net tax value of shares or shares obtained in exchange is proportional to the actual value of the contribution in relation to the total real value of the corporation stained before the transaction. In this regard, the transaction relating to a scission-like operation is assimilated, in the leader of the shareholder, to the exchange of shares or shares in the event of scission. »
Art. 10. In section 171 of the same Code, last amended by the Act of 4 May 2007, the following amendments are made:
(a) in the 1st, a, the words ", 9°, first dash, "are inserted between the words "the various revenues referred to in Article 90, 1°" and the words "and 12°; »;
(b) in the 4th, e, the words ", second dash, "are inserted between the words "the surplus-values referred to in Article 90, 9°" and the words "and 10°; "
Art. 11. In the same Code, an article 183bis is inserted as follows:
"Art. 183bis. For the application of articles 45, § 1^erParagraph 1^er46, § 1^erParagraph 1^er, 2°, 95, paragraph 1^er, 211, § 1^erParagraph 1^erand 231, § 2, paragraph 1^er, the transaction cannot have as its main objective or as one of its main objectives tax fraud or evasion.
The fact that the transaction is not carried out on valid economic grounds, such as the restructuring or streamlining of the activities of the companies participating in the transaction, allows to presume, unless otherwise proven, that this operation has as its main objective or as one of its main objectives, tax fraud or evasion. »
Art. 12. In section 184 of the Code, as amended by the Acts of 28 July 1992, 30 January 1996, 22 December 1998, 4 May 1999 and 31 January 2006, the following amendments are made:
1° paragraphs 3 and 4 are replaced by the following:
"In the event of a contribution of shares or shares for which surplus-values are exempted under Article 45, § 1^erParagraph 1^er, 2°, and do not fall under the exemption of the surplus-values on shares or shares provided for in section 192, the capital released on the occasion of the exchange of new shares or shares issued by the beneficiary company of the contribution is equal to the acquisition value of the shares or shares made in the leader of the contributor. If it is not possible to establish it, the released capital is expected to correspond to the value of the released capital represented by the shares or shares made, in the total released capital of the corporation of which they are representative. For the rest, this contribution is considered a taxed reservation.
In any other event than that provided in the preceding paragraph, the released capital is expected to be the real value of the shares or shares made to the extent that the contribution is paid in shares or shares. »;
2° paragraphs 5 and 6 are repealed.
Art. 13. In title III, chapter II, section 1 of the same Code, an article 184bis is inserted as follows:
"Art. 184bis. § 1^er. When a branch of activity or a universality of goods is the subject of an intake and the intaker's surplus-value is exempt under Article 46, § 1^erParagraph 1^er, 2°, the capital released by this contribution is equal to the net tax value that this contribution had in the leader of the contributor.
In the event that this operation is not covered by Article 46, § 1^erParagraph 1^er2°, on the sole ground that the condition referred to in Article 46, § 1^er, paragraph 3, 3°, is not satisfied, so :
- the capital released by the contribution in the head of the beneficiary corporation is expected to correspond to the real value of the contribution to that corporation;
- the acquisition value of the material provided is expected to correspond to the actual value they had in the head of the company providing on the date the transaction occurred.
§ 2. Where a Belgian institution is the subject of a contribution to a resident corporation, under the conditions that make Article 231, §§ 2 and 3, applicable, the capital released by that contribution is equal to the net tax value that the institution had in the head of the contributor, at the time of the contribution transaction, under deduction:
1° of taxed reserves;
2° of exempt reserves.
§ 3. In the event that a resident corporation receives from a foreign corporation a foreign establishment or elements located abroad, as a result of a contribution of one or more branches of activity or of a universality of property through the issuance of shares or shares representative of the social capital of that resident corporation, exempted or not abroad pursuant to provisions similar to section 46, the net book value of that person received
This net book value is equal to the book value of the assets of the establishment or to the lesser of the book value of the debts attached to it.
§ 4. In the event that a resident corporation absorbs all or part of an intra-European corporation, on occasion or as a result of a merger, split or similar transaction, the amount of the capital released by that transaction in the head of that resident corporation corresponds to the statutory capital, the emission premiums and the amounts subscribed on the occasion of the issue of the limits to the extent^er and 2, and in the event of a split or operation assimilated to a split, with application of the proportion referred to in section 213.
Other elements of equity are considered taxed reserves, excluding exempt reserves related to a Belgian institution of the absorbed or slit society.
In any event referred to in this paragraph, the amount of the released capital and the previously reserved profits of the absorbed or split corporation shall be reduced in the head of the absorbing or beneficiary corporation to the portion of the contribution that is not paid by new shares or shares issued on the occasion of the transaction. The reduction is first attributed to the taxed reserves, then, if these reserves are insufficient, on the exempt reserves and, finally, on the released capital. However, to the extent that inflows are not paid due to the fact that absorbing companies or beneficiaries hold shares or shares of the society absorbed or split, the reduction is charged proportionally to the released capital and reserves and, for them, as a priority on the taxed reserves. No reduction is attributed to surplus-values and capital subsidies, or, where contributions are not paid because of the fact that the absorbent companies or beneficiaries hold shares or shares of the absorbed or slit society, on the exempt reserves attached to the Belgian institution, or in addition to the reductions in value and provisions exempted, which are as such in the accounts.
§ 5. In the event that a foreign corporation transfers to Belgium its head office, principal institution or head office or administration and as a result of that transfer, is subject to the tax of Belgian companies, in the head of the resident corporation that appeared following that transfer, the amount of the released capital is expected to correspond to the statutory capital, the emission premiums and the amounts subscribed to in the course of the issue of the limit shares,^er and 2.
The other elements of equity are considered to be taxed reserves excluding exempt reserves related to a Belgian establishment which had this foreign company before the transfer.
By derogation from paragraph 2, other elements of the capital transferred from abroad are considered exempt reserves if it is the transfer of a corporation as referred to in Article 203, § 1^erParagraph 1^er, 1°, unless this company is established in a Member State of the European Union and is subject to the provisions of the common law in respect of taxes.
The exemption referred to in paragraph 3 applies and remains of application to the extent that this quotity is carried and maintained to one or more accounts distinct from the liability and where it is not used as a basis for calculating the annual allocation of the legal reserve or any remuneration or attributions. »
Art. 14. Under Part III, chapter II, section 1, of the same Code, an article 184ter is inserted as follows:
"Art. 184ter. § 1^er. Without prejudice to the application of Article 214, § 1^er, however, is not considered to be freed capital, the net assets referred to in section 26sexies of the law of 27 June 1921 on non-profit associations, non-profit international associations and foundations, which composes the social capital of a society with social purpose or which was recorded on an unavailable reserve account of that corporation. This social capital and reserve account are exempt only if the conditions referred to in section 190 are met.
Without prejudice to the application of Article 210, § 1^er3°, however, is not considered to be freed capital, the net assets referred to in Chapter Vquinquies of the Act of 9 July 1975 relating to the control of insurance companies, which composes the social capital of a commercial corporation or has been recorded in an unavailable reserve account of that corporation. This social capital and reserve account are exempt only if the conditions referred to in section 190 are met.
§ 2. In the event that a resident corporation receives by merging, splitting or an assimilated transaction, a foreign establishment or foreign-earmarked items, the subsequent surplus-values and less-values for these assets are determined on the basis of the book value they have at the time of the transaction.
In the event of the transfer to Belgium of its head office, principal institution or headquarters of management or administration, by a foreign company, with respect to the elements related to foreign establishments or to the elements assigned to the foreign affiliate of that corporation, the surplus-values and subsequent impairments in respect of these assets are determined on the basis of the accounting value they have at the time of the transaction.
Paragraph 2 does not apply if it is the transfer of a corporation as referred to in section 203, § 1^erParagraph 1^er, 1°, unless this company is established in a Member State of the European Union and is subject to the provisions of the common law in respect of taxes.
In any event referred to in paragraph 2, with respect to the establishment and the elements referred to in this paragraph, the provisions of this Code shall be applied in accordance with the terms and conditions provided for in it, for the reductions of value, provisions, sub-estimates, overestimates, capital subsidies, receivables, surplus-values and reserves relating to the Belgian establishment or to the elements affected in Belgium of the company prior to the transfer of its seat in Belgium. The transfer may not have as a consequence that the initial period of reuse of these surplus-values subject to these conditions is extended.
To the extent that, with respect to items assigned or located in Belgium, surplus-values are expressed on the occasion of a transfer referred to in paragraph 2, they are assimilated to surplus-values expressed, not realized under Article 44, § 1^er1°.
In any event referred to in subparagraphs 1^er and 2, less-values, decreases in value or depreciation in respect of foreign assets at the time of the transaction or transfer of siege, are, however, only taken into account insofar as they result in a net tax value less than the carrying value of these elements at the time of the transaction or the reduced transfer of the amount of reassessments of these items made prior to the transfer of siege that has not been taxed
§ 3. The net tax value of an element is the book value of this element, corrected for:
- the non-taxed surplus-values of any kind, except to the extent that the amount of this surplus-value is among the reserves taxed as a result of the rejection as a professional depreciation fee of this surplus-value expressed, and with the exception of the surplus-values referred to in Article 511, § 2, from the reassessment of certain assets;
- depreciation not allowed as a professional fee and, except for shares or shares other than the shares or shares of the corporation, value reductions not allowed as a deduction;
- sub-estimates of stocks or assets and overestimations of liabilities, taken into account in tax.
The total net tax value of the items referred to in paragraph 1^er transferred by a company, institution or contribution, determined on the occasion of a contribution of branch of activity or universality of goods, a merger, a split or an operation assimilated, is determined under deduction of all debts to third parties attached to it, and is equal to the difference between the tax value of the assets brought and the tax value of the debts This total net tax value cannot be less than zero. »
Art. 15. Section 185 of the Code, as amended by the Act of 21 June 2004, is supplemented by a paragraph 3, which reads as follows:
“§3. The amount of professional losses proven in foreign institutions or inherent in assets located abroad of which the company is located and which are located in a State with which Belgium has entered into a preventive agreement of double taxation, is not taken into consideration to determine the taxable basis, except for the proportional part of these losses for which the company demonstrates that it is not deducted from the taxable profits of that establishment in the State in which it is compensated »
Art. 16. In Article 192, § 1^erthe same Code, replaced by the Act of 28 December 1992 and amended by the Royal Decree of 20 December 1996 and by the Acts of 22 December 1998, 10 March 1999 and 15 December 2004, the following amendments are made:
1° to paragraph 1^erthe words “Article 45 § 1^erParagraph 1^er," are replaced by the words "Article 45, § 1^erParagraph 1^er1°, »
2° the paragraph shall be supplemented by paragraph 3, which reads as follows:
"By derogation from paragraph 1^erfor surplus-values made on shares or shares received in exchange as a result of an exempt transaction under Article 45, § 1^erParagraph 1^er, 2°, the amount exempted under this section is limited to the difference between the price of realization and the real value of the shares or shares held at the time of the contribution transaction. »
Art. 17. In Article 202, § 2, paragraph 1^er, of the same Code, replaced by the Act of 24 December 2002, the words "except to the extent that a surplus arises from the application of Article 211, § 2, paragraph 3, or similar effect provisions in another Member State of the European Union" are inserted between the words "The revenues referred to in § 1^er, 1° and 2°, and the words "are deductible only."
Art. 18. In Article 204 of the same Code, replaced by the Royal Decree of 20 December 1996, paragraph 2 is supplemented by the words ", except to the extent that the surplus results from the application of Article 211, paragraph 2, paragraph 3, or similar effect provisions in another Member State of the European Union. »
Art. 19. In section 206 of the Code, replaced by the Act of 6 August 1993 and amended by the Act of 22 December 1998, the following amendments are made:
1° paragraph 1^er is supplemented by paragraph 2, which reads as follows:
"The imputation on the Belgian profits of the proven professional losses in a foreign establishment owned by the company and located in a State with which Belgium has entered into a preventive convention of double taxation, is subject to the condition that the company demonstrates that these have not been deducted from the profits of this foreign establishment. In addition, the amount of these professional losses that the corporation has charged to its Belgian profits for any taxable period, for the proportional portion of these losses for which the corporation no longer demonstrates for the taxable period that it has not been deducted from the profits of that foreign institution, or if, within the course of the taxable period, the foreign institution concerned is transferred as part of a taxable contribution, a merger, a splitting or a similarity. »;
2° in paragraph 2, paragraph 1^er, the words "by fusion or splitting" are replaced by the words "by fusion, splitting or similar operation";
Paragraph 2, paragraph 1^er, is supplemented by the following sentence:
"No previous occupational loss is attributable when the net tax value of the absorbing corporation or beneficiary prior to the transaction is zero. »;
Paragraph 2 is supplemented by paragraph 3, which reads as follows:
"Paragraph 2 does not apply where the net tax value of contributions is zero. »;
Paragraph 2 is supplemented by paragraphs 4 to 6, as follows:
"Paragraph 1^er also applies in the event of merging, splitting or assimilated operation or a supply of a branch of activity or a universality of goods in the case where the absorbed, scinded or bringing society is an intra-European society and where the operation is fiscally neutral.
In the event of an operation referred to in Article 231, § 2 or § 3, the professional losses experienced by the absorbing or beneficiary company prior to this operation are permanently deductible only in proportion to the share of the net tax value of the absorbing or beneficiary company before the operation in the total of the net tax values, also before the operation, of that company and of the Belgian institution present in Belgium before this operation and other elements brought in Belgium
In the event of an operation referred to in Article 231, § 2 or § 3, paragraph 2 is applicable only in respect of the professional losses experienced by the company absorbed, scintillated or brought before that operation in its Belgian institution, and the proportion referred to in paragraph 2 is fixed only on the basis of the net tax value of the Belgian institution before the operation in the total of the net tax values, also before the transaction received, »;
6° the article is supplemented by a paragraph 3, which reads as follows:
“§3. In the event that a foreign company transfers its head office, principal institution or office of management or administration to Belgium, the provision of § 1^erParagraph 1^er, is applied in respect of the professional losses experienced by this company in a Belgian establishment which the company had before that transfer. »
Art. 20. Section 211 of the Code, replaced by the Act of 6 August 1993 and amended by the Acts of 21 December 1994, 16 April 1997, 22 December 1998, 16 July 2001, 22 April 2003 and 27 December 2004, is replaced as follows:
"Art. 211. § 1^er. In the event of a merger, splitting or operation assimilated to a merger by absorption, referred to in section 210, § 1^er, 1°, and in the event of an operation assimilated to the split, referred to in section 210, § 1^er, 1°bis,
1° the surplus-values referred to in Articles 44, § 1^er, 1°, and 47, which are exempted at the time of the transaction, the capital subsidies referred to in section 362 which, at the time of the transaction, are not yet considered to be profits, as well as any surplus-values made or recognized at the time of the transaction, do not intervene for the taxation under section 208, paragraph 2, or section 209;
2° for the surplus, the taxation provided for in section 209 does not apply to the extent that the contributions are paid by new shares or shares, issued for that purpose, or to the extent that, in the event referred to in § 2, paragraph 3, the absorbent or beneficiary corporation reclaims the exempt reserves present in the society absorbed or split prior to the operation, which are not related to a foreign corporation
In the event of scission or operation assimilated to scission, the resumption of exempt reserves referred to in paragraph 1^er, 2°, is limited to the portion of the exempt reserves present in the split society that is proportional to the portion of the total net tax value of the split society that is transferred to the absorbent or beneficiary society.
Where the net tax value of the corporation is zero, the recovery referred to in paragraph 1^er, 2°, is, by derogation from the preceding paragraph, limited to the portion of the exempt reserves of the split corporation that is proportional to the net tax value of the assets of the split corporation that are transferred to the absorbent or beneficiary corporation.
Paragraph 1^er is only applicable to the condition that:
1° the absorbent company or beneficiary is a resident corporation or an intra-European corporation;
2° the operation shall be carried out in accordance with the provisions of the Code of Companies and, where applicable, in accordance with the similar provisions of the law of companies applicable to the absorbing or beneficiary intra-European society;
3° the operation meets the requirement of section 183bis.
In the event that the absorbent or beneficiary corporation is an intra-European corporation, paragraph 1^er applies with respect to:
- the elements received as a result of the operation that are assigned and maintained in a Belgian institution referred to in Article 229, § 1^er, of which the absorbent corporation or beneficiary in Belgium is disposed of by the fact or not of that operation, and which contributes to the realization of the results of that institution which are taken into consideration for the taxable basis under section 233;
- and the exempt reserves of the societies absorbed or slit, other than the exempt reserves related to a foreign establishment, which are found in the capital of the aforementioned Belgian institution.
Paragraph 1^er also does not apply to transactions involving a fixed capital investment company in real property or non-listed shares approved by the Banking, Financial and Insurance Commission or registered with the SPF Finance on the list of private pricafs.
§ 2. If the contribution is paid other than by new shares or shares, issued by the absorbent or beneficiary corporation, the amount of the released capital and the reserved profits of the absorbed or split corporation is reduced, in the head of the absorbent or beneficiary corporation, to the part of the contribution that is not paid by new shares or shares, issued on the occasion of the transaction.
The reduction is first attributed to the taxed reserves, then, if these reserves are insufficient, on the exempt reserves and, finally, on the released capital.
If contributions are not paid due to the fact that absorbent companies or beneficiaries hold shares or shares of the corporation absorbed or split, the reduction is, by derogation from paragraph 2, charged proportionally to the released capital and reserves, on the understanding that the reduction of reserves is primarily attributed to the taxed reserves.
No reduction is attributed to the capital gains and subsidies referred to in § 1^erParagraph 1^er, 1°, or on exempt reserves referred to in § 1^erParagraph 1^er, 2°, or in addition on the reductions of value and exempt provisions that are found as such in the accounting of the absorbing companies or beneficiaries or the Belgian establishment referred to in § 1^erParagraph 5.
The reduction of released capital is expected to be made on the date of the transaction referred to in § 1^erParagraph 1^er.
The provisions of subparagraphs 1^er and 2 also apply to the extent that, in the event of absorption or acquisition by an intra-European company, the items absorbed or received as a result of the operation are not assigned to a Belgian establishment referred to in Article 229, § 1^er, which is disposed of by the absorbent or beneficiary corporation in Belgium as a result of or not of this operation, or does not contribute to the results of that institution taken into consideration in determining the taxable basis under section 233. »
Art. 21. In section 212 of the same Code, replaced by the Act of 6 August 1993 and amended by the Act of 22 December 1998, the following amendments are made:
1° in paragraph 1^er, the words "research and development tax credits, risk capital deductions," are inserted between the words "investment deductions" and the words "capital subsidies";
2° Paragraph 3 is supplemented as follows:
"To the extent that these gains are expressed, they are assimilated to unrealized surplus-values referred to in Article 44, § 1^er1°. »
Art. 22. In section 213 of the same Code, replaced by the Act of 6 August 1993 and amended by the Acts of 22 December 1998 and 16 July 2001, a paragraph as follows is inserted between paragraphs 1^er and 2:
"When the net tax value of the split corporation is zero, paragraph 1^er applies taking into account the net tax value of the assets transferred by that corporation to each of the absorbing or beneficiary companies. »
Art. 23. In title III, chapter II, section V, of the same Code, an article 214bis is inserted as follows:
"Art. 214bis. Notwithstanding section 210, § 1^er, 4°, in the event of the transfer of the head office, principal place or head office by a European society or a European cooperative society to another Member State of the European Union, no taxation shall take place under Article 208, paragraph 2, or Article 209:
- in respect of the elements that are maintained permanently in a Belgian institution referred to in Article 229, § 1^er, which the company has in Belgium, as a result or not of this operation, and which contributes to the realization of the results of this institution which are taken into consideration for the determination of the taxable base under section 233;
- to the extent that the exempt reserves of the European society or of the European cooperative society before this transfer, which are not related to a foreign establishment, are found as such in the capital of the Belgian establishment of this society. »
Art. 24. In article 222, 5°, of the same Code, inserted by the law of 10 March 1999, the words "section 90, 9°" are replaced by the words "section 90, 9°, 2^e pull."
Art. 25. In article 228, § 2, of the same Code, as amended by the Acts of 28 July 1992, 6 July 1994 and 30 January 1996, by the Royal Decree of 20 December 1996 and by the Acts of 22 December 1998, 15 December 2004, 25 April 2006 and 25 April 2007, a 3°bis is inserted, as follows:
"3°bis the following benefits produced to the intervention of a Belgian establishment referred to in Article 229:
- the reductions or reductions, for any reason, of the amount of the exempt reserves existing in the Belgian establishment, as well as the amount of the exempt reserves as long as these, on the occasion of the transfer of a foreign company to Belgium, are not transferred by the company that became a resident as a result of the transfer of siege;
- for surplus-value or less-value, any surplus-value or less-value determined on the occasion of the removal by the head office in the heritage of the establishment of elements that do not remain in the establishment. »
Art. 26. Section 229 of the same Code, as amended by the Act of 28 July 1992, is supplemented by paragraph 4 as follows:
“§4. For the taxpayers referred to in section 227, 2°, the equity of a Belgian establishment consists of:
- exempt reservations;
- taxed reservations;
- the capital endowment made available to the establishment by the foreign corporation.
The capital of a Belgian establishment is reduced by the amount of the means borrowed in the head of the head office, for which the interests are borne by the taxable result of the Belgian establishment.
When an industry or a universality of goods is brought to an intra-European society under the conditions of application of the exemption referred to in Article 46, § 1^erParagraph 1^er, 2°, or, in the event of a contribution made by an intra-European company, under the terms of Article 231, § 2, or a similar exemption of application in the Member State where the intra-European society is established, the amount of the capital endowment constituted by this contribution is equal to the net tax value that the elements affected in Belgium of this contribution had in the head of the intaker.
In the event of a merger, split or similar operation, in the head of the Belgian institution beneficiary of the absorbing intra-European company or beneficiary:
- the capital endowment is expected to correspond to the positive difference between the real value of the assets and that of the liabilities assigned to Belgium in the said establishment, retained for the determination of the tax due to the transaction and this to the extent that the contributions are paid by new shares or shares issued for that purpose;
- the acquisition value of the elements brought is expected to correspond to the actual value they had in the company absorbed or split on the date the transaction took place.
by derogation from paragraph 4, in the event of a merger, split or assimilated transaction, referred to in section 211 for which an intra-European corporation is concerned as an absorbent corporation or beneficiary, the exempted and taxed reserves present in the resident corporation absorbed or split prior to the transaction, are taken into account in the establishment after the transaction
In the event referred to in paragraph 5, the amount of the reserved profits of the absorbed corporation that is considered in the head of the Belgian institution of the absorbent or beneficiary corporation is reduced:
- to the extent that contributions are paid other than in new shares or shares of the absorbent or beneficiary corporation that are issued on the occasion of the transaction. This reduction is first attributed to the taxed reserves and then to the exempt reserves that are transferred to the Belgian establishment;
- if the contributions are not paid because the absorbent companies or beneficiaries are in possession of shares or shares of the company absorbed or split. In this event, the decrease is charged proportionally to the reserves of the Belgian institution that are transferred, with a priority charge on the taxed reserves, and the amount of the released capital endowment that is determined as the balance between the net value of the received items and the amount of the transferred reserves. No reduction is attributed to surplus-values and capital subsidies referred to in Article 211, § 1^erParagraph 1^er, 1°, or on exempt reserves referred to in § 1^erParagraph 1^er, 2°, of the same article, or in addition to the reductions in value and exempt provisions that are found as such in the accounting of absorbent or beneficiary companies or the Belgian establishment referred to in § 1^erParagraph 5 of the same article.
The provisions of paragraphs 5 and 6 shall also apply in the event that an intra-European company acquires elements in a Belgian establishment from another intra-European company on the occasion of an operation provided that the exemption referred to in Article 231, § 2, paragraph 1^er, be applied in the head of the bringing society. Accordingly, the amount that was present on exempt and taxed reserves and in capital endowment in a transferred Belgian institution, is transferred respectively to exempt and taxed reserves and capital endowments in the Belgian institution of the absorbing society, which are subject to the provisions of paragraph 6.
In the same circumstances referred to in paragraphs 5 and 7, the provisions of this Code shall remain applicable, in accordance with the terms and conditions provided for therein, to the reductions in value, provisions, underestimates, overestimates, capital subsidies, receivables, surplus-values and reserves existing in the Belgian institutions of the companies absorbed or split, to the extent that these elements are found in the assets of the Belgian institutions of the absorbing companies merging, splitting or similar transactions may not result in an extension of the period of reuse of surplus-values subject to these conditions beyond the original term.
In the case of the application of articles 211 and 231, paragraphs 2 and 3, the surplus-values that are expressed or recognized on the occasion of this transaction are considered unrealized. To the extent that these gains are expressed, they are assimilated to unrealized surplus-values referred to in Article 44, § 1^er1°.
The provisions of paragraph 5 are also applicable in respect of the elements and equity which, in the event of the transfer of the head office, principal institution or head office or office of directors by a European society or a European cooperative society to another Member State of the European Union with application of the provision of Article 214bis, are permanently assigned to a Belgian institution of which the company has after the transfer. »
Art. 27. In Article 231, § 2, of the same Code, inserted by the Act of 28 July 1992 and amended by the Acts of 21 December 1994, 16 April 1997, 14 January 2003, 27 December 2004 and 25 April 2007, the following amendments are made:
(a) paragraph 1^er is replaced by three paragraphs, as follows:
“§2. When a Belgian institution or elements located in Belgium are in the acquired property of an intra-European society by a resident society or by an intra-European society, on the occasion of a merger, splitting or an operation assimilated therein, or of a contribution of one or more branches of activity or of a universality of goods which takes place with application in the State of residence of the^er, 5°, b)bis, then:
1° the surplus-values referred to in Articles 44, § 1^er, 1°, and 47, which are exempted at the time of the transaction, the capital subsidies referred to in section 362 which, at the time of the transaction, are not yet considered to be profits, as well as the surplus-values made or recognized at the time of the transaction, do not intervene for taxation;
2° for the surplus, the taxation does not apply to the extent that the contributions are paid by new shares or shares, or to the extent that, in the event of a merger, splitting or assimilated operation, the absorbing or beneficiary company resumes in a Belgian establishment the exempt reserves present in the Belgian establishment of the company absorbed or scinded before the operation.
Paragraph 1^er is only applicable in respect of the transferred or brought elements as a result of the operation that are assigned to a Belgian establishment and that contribute to the realization of the results of that establishment which are taken into consideration for the taxable basis pursuant to Article 233, or in respect of the elements located in Belgium that remain maintained in Belgium and subject to the provisions of Article 233.
In addition, paragraph 1^er is only applicable provided that:
1° the operation shall be carried out in accordance with the applicable provisions of the Code of Companies and in accordance with the applicable provisions of the law of analog companies in another Member State of the European Union that apply to the absorbing or beneficiary intra-European society;
2° the operation meets the requirement of section 183bis. »;
(b) in paragraph 3, which becomes new paragraph 5, the words "research and development tax credits, risk capital deductions" are inserted between the words "investment deductions" and the words "less values";
(c) Paragraph 5, which becomes new paragraph 7, is replaced by the following:
"In any event referred to in sections 44bis, 44ter and 47, the operation may not result in an extension of the original routing period. »
Art. 28. In section 235 of the same Code, as amended by the Acts of June 21, 2004 and December 27, 2004, the words "236 to 240" are replaced by the words "236 to 240 bis".
Art. 29. Section 236 of the Code, which was restored by the Act of 22 June 2005, is supplemented by a paragraph, which reads as follows:
"The amount of at-risk capital of a Belgian establishment for the purposes of sections 205bis to 205novies is reduced by the amount of funds borrowed from the head of the main office, whose interests are borne by the taxable result of the Belgian establishment. "
Art. 30. In heading V, chapter III, section II, of the same Code, a section 240bis is inserted, as follows:
"Art. 240bis. § 1^er. The limitations on the transfer of professional losses referred to in Article 206, § 2, are applicable with respect to the transactions referred to in Articles 229, § 4, paragraph 5, and 231:
1° the professional losses experienced by the Belgian establishment of the existing absorbent or beneficiary corporation, prior to the operation, remain deductible after the operation only in proportion to the share of the net tax value of that institution prior to the operation in the total net tax value of the establishment and the net tax value before the operation of the elements brought or absorbed and maintained in the establishment on the occasion of the operation;
2° the professional losses experienced by the resident company absorbed or sworn or tested by an intra-European company absorbed or sworn in in a Belgian establishment which the company had before the operation, are deductible after the operation in the head of the Belgian institution of the absorbing company or beneficiary in proportion of the share of the net tax value of the elements received or absorbed in the establishment on the occasion of the fiscal institution
§ 2. In the event of the transfer of the head office, principal institution or office of direction or administration by a European company or a European cooperative society to another Member State of the European Union with application of the provisions of Article 214bis, only the professional losses proven by the company in Belgium before this transfer are deductible in the Belgian establishment of which the company has after this transfer. "
Art. 31. Article 292bis, § 3, of the same Code, inserted by the law of 23 December 2005 and amended by the law of 27 December 2006, is repealed.
Art. 32. In article 357 of the same Code, the 3rd, repealed by the Royal Decree of 20 December 1996, is reinstated in the following wording:
"3° as the case may be, absorbing companies or beneficiary companies; "
Art. 33. In Part VII, Chapter VI, of the same Code, Section III, containing section 365, repealed by the Act of 15 March 1999, is reinstated in the following wording:
"Section III. Imposition in the head of the absorbent or beneficiary company
Art. 365. In the event that a corporation is absorbed or split in the context of a merger, operation assimilated to a merger or split referred to in sections 671 to 677 of the Corporations Code, or a law operation of similar corporations in foreign law, taxation relating to taxable income collected by the corporation absorbed or split up to and including the specified period »
Art. 34. In title VII, chapter VIII, section 1 of the same Code, an article 399ter is inserted as follows:
"Art 399ter. The recovery of the tax of a corporation under sections 673 to 675 of the Corporations Code, or of a law operation of similar corporations under foreign law, established in the head of the beneficiary companies, is, unless otherwise stated in the notice of the transaction, carried out in the head of the various beneficiary companies prorated by the real value of the net assets each received. »
PART 3. - Entry into force
Art. 35. This Act applies to transactions or transfers made from the date of publication of this Act to the Belgian Monitor.
Derogation from paragraph 1^er, sections 5, d, 21, 1°, and 27, b, of this Act are applicable from the 2007 taxation year.
Derogation from paragraph 1^erArticle 184bis, § 1^er, paragraph 2, of the Income Tax Code 1992, as set out in section 13 of this Act, is applicable to transactions made on or after February 6, 2001.
Derogation from paragraph 1^er, Article 19, 3° and 4°, respectively for operations carried out from 1^er January 1990 and from 1^er October 1993, is applicable from the 2009 taxation year.
Derogation from paragraph 1^er, section 21, 2°, of this Act is applicable to mergers, scissions or similar transactions that are carried out from 1^er October 1993, starting with the 2009 taxation year.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Brussels, 11 December 2008.
ALBERT
By the King:
Deputy Prime Minister and Minister of Finance,
D. REYNDERS
Seal of the state seal:
Deputy Prime Minister in Minister of Justice,
J. VANDEURZEN
____
Notes
(1) Parliamentary references:
Documents of the House of Representatives - K.52-1398:
Deposit: 24 July 2008.
Adoption en commission (amendé) : 13 novembre 2008.
Review, Full record: 20 November 2008.
Overall vote: does not vary (unanimity) Full report: 20 November 2008.
Adoption with amendment to the Commission: 20 November 2008.
Senate documents: S-4-1012.
Transmission to the Senate for the first time: November 21, 2008.
Expiration deadline: Evocation deadline: November 27, 2008.
Transmission to the Chamber for Penalty: November 27, 2008.
Trial by Chamber for sanction: 1^er December 2008.