PhD student: Mrs P. Van Belle

Promotors: Mrs Prof S. Cools, F. Debelva, Prof K. Geens

Duration: 1/9/2023 - 31/8/2027

Abstract:

The overarching theme of this study concerns the qualification problems that arise in partnerships within wealth planning. Qualification problems and tax transparency has already been the subject of several studies. However, no Belgian focus has yet been on partnerships (maatschap and related forms) within wealth planning. In addition, most studies date from almost a decade ago and many changes have occurred in the meantime, both in terms of corporate law and taxation. The topic is still a current and unresolved problem. The qualification of both domestic and foreign entities always depends on the national rules of the jurisdiction, with no international obligations imposed to follow the qualification of other countries. The lack of any kind of harmonization (the OECD tries but has no binding rules) leads to situations where a partnership is considered a transparent entity in one country, while in another country it is considered a separate legal entity. This creates problems of double (non-) taxation and legal uncertainty. Moreover, Belgium does not apply a consistent qualification to international partnerships. Having legal personality as an entity lex societatis, still causes Belgium to sometimes qualify these entities as fiscally transparent (e.g. dutch STAK) or sometimes as a separate entity (e.g. US LLC). This inconsistency and discrimination (same legal elements, different qualification) increases the complexity of the problem. The aim of this research is therefore to develop a specific framework for Belgium, aimed at equal tax qualification of domestic and foreign partnerships based on corporate law characteristics. The choice for de maatschap and related forms is justified by the continuing popularity of the partnership in Belgium. In addition, the fact that inheritance taxes do not fall within the scope of double tax treaties plays an extra important role as it creates more risk of double (non-) taxation.