01 2014 the point BDO newsletter BDO Management Advisory increases efficiency and quality FAQ Are you ready for SEPA? TAX Fairness tax: some clarifications Partnership news Interview Jozef Lievens: Professionalisation and private equity go hand in hand www.bdo.be editorial COLOphON As you can see, our Newsletter has a new look. Financial, legal and tax language is sometimes difficult to digest, and describing this complex and constantly evolving subject to you in a clear and informative way is a constant challenge for us. We want to be “to the point” in this regard, hence the new name for our Newsletter. #01 | 2014 The collaboration in the context of our partnerships often gives us new, broader perspectives, and obviously we want to share these with you. We as such also want to let an external expert be heard in this Newsletter on a regular basis, in the form of an interview. It is no coincidence that our first guest is Jozef Lievens, founder and inspirer of the Institute for Family Businesses (Instituut voor het Familiebedrijf, IFB). Editorial board BDO is a structural partner of the IFB, which is no surprise given our shared focus on a long-term relationship with, and passion for, family businesses and entrepreneurs. BDO newsletter Werner Lapage Hans Wilmots Dirk Vandendaele Ann Celis Cindy De Bock Annick Deklerck © BDO 2014 : The information contained in this Newsletter is of an informative and general nature and is not intended as professional advice. Our advisors are at your disposal for more in-depth advice and to take appropriate action. Should you want us to send our Newsletter electronically, please then contact us at newsletter@ bdo.be. Our Newsletter can also be consulted at www.bdo.be. Our Newsletter is also available in Dutch, French or German. R.E. BDO Academy Burg.Ven. CVBA/ Soc. Civ. SCRL, Werner Lapage, p/a The Corporate Village, Da Vincilaan 9 Box E6, Elsinor Building – 1935 Zaventem A family business does not automatically imply a small-scale or conservative scope, quite the contrary. In fact, three-quarters of the businesses that drive the Belgian economy are family-owned. Moreover, of the companies with a turnover of more than EUR 200 million, more than half are family businesses. The challenges facing these companies are massive. In these crisis-dominated times there is great uncertainty, and therefore also a need for guidance. Increased professionalisation and attention to corporate governance require a significant deployment of people and resources. In addition, further growth often depends on attracting (external) sources of financing. Perhaps the main challenge specific to family businesses is the succession and transfer problem that will arise for many companies during the coming decade. A transfer or succession is not a decision taken lightly, but instead a well-thought-out process than often takes several years. It is no surprise that the IFB and BDO are collaborating and exchanging knowledge in this area. Both parties have an in-depth knowledge of and many years’ experience in all aspects associated with family businesses. Topics such as “Transferring the Family Business” and “Financing the Company” are comprehensively explained in brochures and seminars in which the theoretical context is supplemented by practical case studies. These brochures are available free of charge. A healthy family business does not have a parochial mindset and also dares to look abroad if opportunities arise. The international dimension of business and globalisation create fantastic opportunities, but just like the issue of succession they must be very well prepared and supported. BDO can also help you with this, through its worldwide network, by listening carefully to your needs, etc. Did you find the data sheet in this edition? It will keep you up to speed with the latest information. After all, you too like to be “to the point” in your professional contacts! Werner Lapage Chairman of the Editorial board contents 4 8 12 14 24 COVER STORY BDO Management Advisory increases efficiency and quality 4 AUDIT IFRS news 7 LEGAL Law on the harmonization blue and white collar workers enacted 8 FAQ Ready for SEPA? 12 TAX 2013 Year-end tax legislation 14 VAT obligations: blank slate for lawyers? 16 Fairness tax: some clarifications 19 Transfer pricing and customs: A forced marriage 20 partnership news Professionalisation and private equity go hand in hand 24 Corporate news 27 Cover story BDO Management Advisory increases efficiency and quality BDO staff pride themselves on their professional, personal and above all pragmatic approach, and on the passion for their profession and for client relationships. Of course it goes without saying that this goes hand in hand with a long-term approach, in which each BDO adviser invests in the relationship with the client over the entire life of the business: from when his or her organisation starts up, through the organic growth phase it goes through, at the transition to a stable structure and more professional operation until the transition to the next generation. 4 2thepoint | #1 | 2014 Financial and nonfinancial advice BDO offers its clients pragmatic support for all the financial, fiscal and legal matters that may arise during the life of the organisation. Since 1 October 2013, BDO has extended this support with a team of in-house advisers under the name Management Advisory, designed to offer support to the business owner, including in all non-financial aspects of the business. By setting up Management Advisory, BDO now offers the unique combination of substantive expertise on a financial, organisational and HR level from one and the same partner: after all, in each organisation these aspects are also closely associated with results. As an in-house adviser, BDO Management Advisory can see the global picture and give advice that covers the entire breadth of the business in the long term. What exactly can you expect from this team? BDO Management Advisory gives comprehensible and pragmatic strategic advice while at the same time offering hands-on solutions with unique methodologies to be able to support the business owner in each life stage of his or her organisation. The adviser starts from the “existential questions” about the organisation and is therefore a specialist in strategic issues such as “In what direction do we want to go? What will our unique company strategy be? How can we distinguish ourselves from the rest? In what market segment do we want to operate? What do I need for that? Are we prepared for collaboration, integration or merger?” Because organisations grow organically, it may sometimes be that the original business strategy is consciously or unconsciously adapted and that not all noses are pointing in the same direction, or activities are no longer in line with market competitiveness. BDO Management Advisory can help you conduct environment analyses, establish vision, mission and translate ideas into measurable operational goals, estimate the necessary resources, deploy the right people and define specific indicators to monitor strategy. The organisation is once again given structure, direction and competitiveness. Where is the focus? Entirely in line with that which a modern business owner can expect, the focus of BDO Advisory is on both efficiency and quality. After all, the balance between these aspects will determine the success and Klaartje Huyghe future prospects of the organisation. Efficiency questions are answered according to the methodology of Lean & Six Sigma to achieve the maximum from a minimum of resources. We offer measurable, wellfounded answers to questions to be able to improve in a targeted fashion, such as “How can we work more efficiently? Where can I save? What are my biggest expenditures? Am I using the right resources in the right place?”. However, efficiency can never be looked at without also giving a balanced consideration to the quality of the production or service. BDO Management Advisory implements quality systems (with or without accreditation) in a pragmatic way, i.e. without an administrative burden, to provide an answer to business owners’ questions such as “How do I improve my customer satisfaction? How can I monitor my production or services? How can I detect and curtail errors?” By striving for quality in an efficient way, the organisation becomes highly versatile and futureproof. Pragmatic solutions? develops and supports change processes (including change communication) to increase the chance of success, to involve all stakeholders and to ensure that your managers are ready for their leading role. With BDO Management Advisory, the emphasis is more on the pragmatic than the theoretical. As you are used to from our financial, fiscal and legal advisers, BDO Management Advisory assists the client with unique methodologies and ready-to-use tools, offered in four areas: - Guarantee comfort through organisational management: BDO Management Advisory makes the real business risks tangible and designs management measures to bring them under control. Monitoring becomes simple by implementing an accessible management information system. - Create peace of mind during change: as an in-house adviser, BDO Management Advisory - Allow talent to flourish through human capital solutions: with BDO Management Advisory, BDO-newsletter 5 Cover story investing in people becomes a targeted task that also produces a genuine yield by selecting the right employees and leaders, by being able to bring the best out of people, by being able to map out who is performing well and who is not and by motivating staff as much as possible. - Measure competencies with HR tools to be able to work objectively and in a manner that is tailored to the organisation on the basis of, for example, personality questionnaires, 360° surveys, various competence tests and assessment exercises, produced in-house by BDO Management Advisory. Apart from the tools and methodologies in these sub-areas, the in-house advisers are a direct link to the familiar financial, fiscal and legal expertise of BDO. What’s in it for you? Every investment by BDO must be able to offer clients immediate added value. This is certainly no different with the start-up of BDO Klaartje Huyghe Management Advisory. We believe this team of advisers will make the BDO service even more complete within the existing strategies and values. As BDO, the relationship people, we want to invest in in-house advisers who can think with our clients personally and professionally on all levels and over the long term, can participate passionately in each life stage of the organisation and at the same time can support them pragmatically. n For more information : Do not hesitate to contact the Management Advisory Department : [email protected] Strategic advice QUALITY EFFICIENCY Human Change PROCESSES capital Audit RAS reporting Accounting HR Tools Legal Tax CF IM BDO and Adforum: partnership with added value You were able to read in the previous BDO newsletter that BDO and Adforum decided, after cooperating for several years, to join forces as of 1 October 2013. As a small but rapidly growing player in HR advisory, Adforum completes the BDO Management Advisory team. This allows us to offer our clients the total package that is required to increase organisations’ performance in the broadest possible sense. 6 2thepoint | #1 | 2014 AUDIT Dominique Millis - Cédric Mattard IFRS news As a reminder… Below you will find the main new items that will affect 2013 financial statements issued under IFRS: The entry into force of the standard IFRS 13, Fair value measurement ; The modifications to standard IAS 1 relating to the presentation of other elements of comprehensive income; and The revisions of standard IAS 19, Employee benefits, in particular that requiring the immediate accounting of actuarial gains and losses in other elements of comprehensive income (and therefore, for those applying it, the removal of the so-called corridor method). Publication by the ESMA of common European audit priorities for 2013 financial statements The ESMA (the European Securities and Markets Authority) has just published the list of priority points that will be used by national supervisory authorities in Europe in connection with auditing the 2013 financial statements of companies listed on the stock exchange, created to promote the consistent application of IFRS standards. The common audit priorities are designed to apply IFRS in relation to: Depreciations of non-financial assets; The assessment and information to be provided on obligations in accordance with postemployment benefits; Fair value measurements and the information to be provided; The information to be provided in relation to significant accounting methods, judgements and estimates; and The valuation of financial instruments and the information to be provided on the associated risks. Insurers are lowering the guaranteed return on group insurances: what will the consequences be under IAS 19 ? Since the Vandenbroucke law of 2004, the performance of the second pension pillar is guaranteed (3.25% for premiums paid by employers, 3.75% for those paid by workers). This legal obligation to guarantee performance placed on employers has not led to pension liabilities being recorded in the accounts of Belgian companies as long as it has been transferrable to the insurers responsible for managing group insurance plans. benefits relating to the services rendered by staff members. The subject is being discussed by the IFRS Interpretations Committee (IFRIC). At this stage, and subject to a future different interpretation by the IFRIC, it seems that the funding commitment may be determined by projecting the contributions at the guaranteed rates of 3.25 and 3.75% to estimate the amount owed and then discounting it at the rate of return of high-quality corporate bonds. It is, however, unlikely that a significant debt could exist on 31 December 2013, to the extent that any deficit in performance will normally only cover the contributions paid in 2013. n For more information: Do not hesitate to contact our Competence Centre IFRS : [email protected] Today, the lowering by insurers of the guaranteed return on future payments (to bring it into line with those of sovereign bonds) transfers part of the obligation to employers. IAS 19 normally requires the pension plan to be recognised as a defined benefit plan when the employer is required to make further payments if the insurer does not pay all future BDO-newsletter 7 Legal Law on the harmonization blue and white collar workers enacted The Constitutional Court determined that the differences between blue and white collar workers had to be resolved by 8 July 2013 at the latest in order to reach a so-called “unity status”. The trade unions and employers did not reach an agreement on this and as a result our Minister of Work made a final compromise proposal which has been transposed into legislation. the law of 26 December 2013 on the unity status has been published in the Belgian State Gazette of 31 December 2013. we provide you with the essentials. 8 2thepoint | #1 | 2014 Katleen Engelen New notice periods as of 1 January 2014 As of 1 January 2014 the notice periods for both blue and white collar workers (for the employer) will be determined as follows: Period as of 1 January 2014 Former rules lower white collar workers 1st quarter 2 weeks 3 months (13 weeks) 2nd quarter 4 weeks 3rd quarter 6 weeks 4th quarter 7 weeks 5th quarter 8 weeks 6th quarter 9 weeks 7th quarter 10 weeks 8th quarter 11 weeks Year 2-3 12 weeks Year 3-4 13 weeks Year 4-5 15 weeks Year 5-6 18 weeks (+3 weeks/year) Year 6-7 21 weeks (+3 weeks/year) Seniority … 6 months (26 weeks) … Year 20-21 62 weeks (of 63) Year 21-22 63 weeks (+1 week/year) Year 22-23 64 weeks (+1 week/year) … 15 months (65 weeks) … Transitional provisions For ongoing employment agreements, the current notice periods as built-up with the present employer will be fixed on 31 December 2013. As of 1 January 2014, additional notice is acquired in accordance with the new rules. In order to allow blue collar workers to catch-up, the notice terms during a transitional period should reach at least the following minima: Seniority at the moment of publication of the new regulations Date on which the notice period should at least be equal to the new regulations 30 years or more Immediately in the course of 2013 20 years 1/1/2014 15 years 1/1/2015 10 years 1/1/2016 Less than 10 years 1/1/2017 BDO-newsletter 9 Legal of cases probation would be limited to 3 working days, e.g. student work and temporary agency work. A provision in the employment contract will no longer be required. Notice period starting on Monday Where previously there was a difference in the moment the notice period takes off (for white collars workers on the first day of the month following the notification), the notification period will now start on the next Monday following the notification. Notion “seniority” (including period performed as temporary agency worker) Exceptions Other measures Sectoral deviations will be allowed upon the condition that the minimal notice period of 6 months is guaranteed, but 1/3rd of the notice period must serve to maximize the chances of re-employment of the dismissed employee. Beside the amendments already announced regarding the notice period, also a number of other measures have been adopted, taking effect on 1 January 2014: As of 7 years’ seniority, outplacement will become obligatory taking into account that the cost equal to 4 weeks can be reduced from the notice period as long as at least 6 months of notice period remains guaranteed. Abolition of “Carenz day” - The “carenz day” or waiting day (the unrefunded first day of sick leave), together with the discrimination regarding the regulations on the notice period were the immediate cause for the judgment by the Constitutional court of 7 July 2012. Abolition of probation period - Only in a very limited number 10 2thepoint | #1 | 2014 Seniority is understood to be the period during which the worker uninterruptedly remains in service of the same undertaking. Also the employment in the capacity of temporary agency worker must under certain conditions be taken into account, i.e. to the extent that there was no interruption of more than 7 days, the job duties are identical and for a maximum of 1 year. Maximum notice period The notice periods are not absolute maximum terms, only these should not be deviated from on sector level (joint committee or subcommittee). The employer and employee would still be able to deviate from this rule on individual level, as well as via a CBA on company level. Katleen Engelen « As a reminder, it was decided that in case of notice by the employer, the notice period will evolve progressively: first three-monthly during the first two years of seniority and subsequently annually. From the fifth till the nineteenth year, seniority is built up with three weeks per year. In the 20th year, the notice period is increased by two weeks, and from the 21st year with one week per year of seniority started. In case of notice by the employee, the notice period is determined at 1 week for each three months period of seniority, etc. to a maximum of 13 weeks in case of 8 years or more of seniority. Currently a number of propositions are on the table in respect of special circumstances, such as dismissal when reaching the statutory retirement age or in case of illness. Fixed-duration contract of employment In respect of fixed-duration contracts of employment the new act holds specific provisions, in particular regarding the possibility of notice during the first half of the agreed duration of the employment contract. In case of consecutive employment contracts, this can only be done during the first contract that the parties have concluded. Transitional arrangement The notice period to be respected in case of notice by the employer or the employee in respect of an From 1 January 2014 the probation period is no longer effective and identical notice periods now apply for all employees. » employment contract concluded prior to 1 January 2014 is determined by adding up the below two notice periods: - The notice period applying according to an uninterrupted seniority on 31 December 2013 and determined on the basis of the then existing legal, regulatory and conventional rules; - The notice period applying according to the uninterrupted seniority as from 1 January 2014 and determined on the basis of legal, regulatory rules applicable on the moment of notification. The government provides for a compensatory arrangement and indemnity for employees who prior to 1 January 2014 qualified as a blue collar worker, in order to offer them, under certain circumstances, an equal protection against dismissal as is the case for employees who built up an equal seniority for the whole period of employment with the same employer in the new system. Employees that do not meet these conditions will be benefitting from a severance payment at charge of the National Employment Office (NEO). However, employees of certain industries, such as the wood, textile and diamond industry, will, in respect of dismissal notified between 1 January 2014 and 31 December 2017, be able to benefit from a transitional arrangement to evolve gradually towards the new notice periods. For mobile and temporary construction sites even an unlimited exception to the application of the new dismissal regulations applies. Abolition arbitrary dismissal and motivation of the dismissal The law provides that the current provision on unfair dismissal and the motivation of a blue collar worker’s dismissal will be abolished. The social partners should conclude a Collective Bargaining Agreement within the National Labour Council containing one single rule that will be applicable to all employees. To this day, no agreement has been reached and hence the current provision remains in force. Deferred social liability For employees that have built up a seniority of more than 5 years in the unified statute as from 1 January 2014, employers will be obliged to build a deferred social liability fund. Employers will have to build a reserve, which will be deductible from the taxable base. In practice this will only be feasible from 2020 due to the requirement of a minimum seniority of 5 years in the unified statute, i.e. from 1 January 2014. n For more information: Do not hesitate to contact the Legal Department : [email protected] BDO-newsletter 11 FAQ Ready for SEPA? Thanks to SEPA, several aspects of the way you manage your payments are about to change. All payments within Europe will shortly become “internal payments”. The final date for integrating the European single market for payments is 1 February 2014. All transfers must be SEPA-compliant by that date. The management of direct debits is also being passed from the bank to the recipient of the payments from that date. According to recent reports, a transition period of 6 months will be provided (ultimately untill 1 August 2014), allowing payments under the former scheme. But still, the date of commencement is 1 February. What codes will I shortly need to make payments? By 1 February 2014 you must use an IBAN number for each payment. As from 1 February 2014 you will no longer need to specify a BIC code for national payments and as from 1 February 2016 this requirement will also no longer apply to international payments. Transfer of management of direct debits: how should I best prepare? With a direct debit, the debtor gives the creditor a mandate. From 1 February 2014 it will no longer be the bank, but you yourself as a business owner, who is responsible for managing your mandates. A distinction can also be made according to whether you make or receive payments by direct debit. If you as a business owner (or private individual) make payments 12 2thepoint | #1 | 2014 by direct debit, little if anything will change in practice. The direct debits will simply continue. If you receive payments by direct debit, you will have to make provision for the management of these mandates. Dirk Vandendaele - Philippe Turco What is Core and B2B? Core is the European direct debit that applies to everyone. This is being transferred to the new European direct debit system. In Business to Business or B2B (the version for transactions between professionals), the Belgian direct debit is not automatically transferred. In this case, a new mandate will have to be signed. In Core a consumer can request repayment of a direct debit payment up to 8 weeks (and in some cases even 13 months) after the debit. This repayment request does not mean that the debt lapses. As from 1 February 2014, a consumer will be able to notify his or her bank of the creditors by which he or she never wants to be debited. The consumer can also specify which debtors are authorised to debit his or her account. It will also be possible to block his or her account for collections via a European direct debit. Finally, the consumer will also have the opportunity as from 1 February 2014 to notify his or her bank of a maximum amount and/ or the frequency of the collections. her bank, a debtor (professional) will no longer be able to request repayment of a payment made in B2B. Possible repayments are discussed directly with the supplier. The debtor is, however, entitled to ask his or her bank not to debit his or her account until the due date. In B2B, by signing the mandate and the confirmation to his or What actual steps do I have to take? The changes to the SEPA standard can be far-reaching in scope, and depending on the size of your business it may even be worthwhile appointing a project manager or coordinator to plot all the changes and implement the roadmap. 1) Update your means of communication Include your IBAN number and BIC code in your letterheads, on your invoices, price quotations, contracts, on your website, etc. It may also be useful to inform your clients and suppliers directly via a mailshot. 2) Update your databases, programs and electronic payment applications Convert the account numbers of your suppliers and update all relevant files in your accounting package or ERP system. Also update your electronic payment applications such as e-banking and Isabel. 3) Make the switch to SEPA direct debits For more information : Do not hesitate to contact the Accounting Department : [email protected] BDO-newsletter 13 TAX 2013 Year-end tax legislation In the past two years numerous fiscal changes have been adopted to make up for budgetary deficits and to boost economic growth. In the mean time Federal elections are approaching gradually. Still, more tax legislation was issued right before the 2013 year-end. Below is an overview of the most important provisions of the law containing various fiscal and financial provisions of 21 December 2013 (published in the Belgian State Gazette of 31 December 2013). In contrast to the previous eight fiscal Laws made by the Di Rupo I government, the principal emphasis lies on simplifying and adapting existing rules, and not on introducing new taxes. Notional interest deduction after Argenta case European case law provided for an adjustment to the Belgian rules governing notional interest deduction. This means that own equity belonging to foreign permanent establishments or 14 2thepoint | #1 | 2014 immovable property is now included in the calculation basis, whereas previously, the tax administration barred this from the calculation basis. Considering the current budget problems, a compensating measure was provided to restrict the tax benefit. There can only be an additional tax benefit when a permanent establishment has its registered office in an EEA Member State if the notional interest deduction on the permanent establishment’s own equity is greater than the establishment’s (exempt) profit. The remainder can then be deducted from the Belgian profit. Date of commencement: assessment year 2014 Tax authorities can take books and documents The Income Tax Code provides that the taxpayer must always be able to present to the tax inspector any books and documents necessary to determine the taxable income. The tax inspector may from now on also take the documents for the duration of any normal inspection. The tax inspector shall be required to draw up an official order to do so. Books that have not yet been closed may not be taken. Issues discovered by the inspector in the documents taken may also be used to impose taxes on third persons. Date of commencement: 10 January 2014 Obligation to present books and documents in relation to foreign life insurance policies Now that foreign life insurance policies need to be mentioned in the annual tax return, the Income Tax Code was extended, obliging to present all books and Cindy De Bock - Bart Caers documents related to these foreign life insurances upon first request of the Belgian tax authorities. As mentioned above, the tax administration is also allowed to take these documents for the duration of the inspection. Date of commencement: 31 December 2013 Taxable benefit in kind on company cars The new law provides that the reference period to determine the CO2 emissions to calculate the taxable benefit in kind on company cars is brought forward, i.e. from 1 October N-2 to 30 September N-1. This means that the new reference for CO2 emissions can start from 1 January, and not from April, as has been the case to date. With this measure problems caused by retroactive calculations are now a thing of the past. Date of commencement: advantages attributed from 1 January 2014 Procedure for ex officio exemption extended to Article 145 of the ITC92 Sometimes taxpayers do not know that they are entitled to tax exemption or they simply forget to include this in their income tax return. This could only be rectified in such cases by means of an appeal. The procedure of ex officio exemption is now extended to all matters of tax reduction included in Articles 145-1 to 14536 ITC92. This means that the term is extended from 6 months to 5 years, to be calculated as from 1 January of the respective tax year. Date of commencement: from assessment year 2014 Intra-Community acquisitions Intra-Community acquisitions of goods and services related to transactions that are exempt from VAT in Belgium, will no longer be subject to VAT.This regulation dismisses the recipient of the goods or services from all compliance formalities in relation to these transactions. This measure affects the intraCommunity acquisition of goods and services as provided for in art. 42§§1, 2 en 3, 1st section 1°- 8° of the Belgian VAT Code. Equipment and machinery permanently installed The supply of equipment and machinery that is permanently installed, will no longer qualify for the VAT exemption in relation to the leasing of immovable property. Those transactions will therefore become subject to VAT. Date of commencement: 1 January 2014 n For more information : Do not hesitate to contact the Tax Department [email protected] Date of commencement: 10 January 2014 Programme Law I Beside the law on various tax provisions, the legislator also adopted a programme law. The following fiscal provisions are included in this act and take effect on 1 January 2014: • increase from 20% to 40% of the exemption for apprenticeship bonus for employers who employ young people who are enrolled in part-time education; • additional reduction of the labour costs for construction work; • general investment allowance of 4% for small companies for the years 2014 and 2015; • 2.2% increase in exemption of withholding tax for night and shift work. BDO-newsletter 15 TAX VAT obligations: blank slate for lawyers? As from 1 January 2014, lawyers are subject to VAT. At the last moment, the VAT administration published another circular, designed to provide an answer to certain practical questions. VAT liability is not entirely new can now recover the VAT on costs related to their VAT activities. Lawyers are already subject to VAT, albeit that until 31 December 2013 they were exempted VAT payers. As from 1 January 2014 this exemption will cease to exist and the services they provide will be subject to VAT. They can also “revise” to their benefit the VAT that was incurred “historically” on capital assets for X/5ths or X/15ths. This historic VAT credit is set off against the VAT due during the 2014 calendar year. The remaining balance can actually be recovered in 2015. According to their VAT status - full, mixed or partial taxpayers - and the choice made regarding whether or not to submit normal periodic VAT returns, lawyers and trainee lawyers 16 2thepoint | #1 | 2014 Who is subject to VAT? Trainees, lawyers and partner lawyers. In principle, all trainees, Cindy De Bock - Erwin Boumans « Associate lawyers and trainee lawyers are also regular VAT payers. But they can opt for a special arrangement that allows them to complete only a limited number of formalities. In that case, however, they are not entitled to a VAT deduction. » lawyers and partner lawyers who provide regular legal services on an independent basis are required to register for VAT, charge VAT and complete periodic VAT formalities. The scheme therefore does not apply to support staff working on a subordinate basis. the performance of services, the completion of the service is the first (“primary”) cause for chargeability of VAT. Payment of the service is also a cause for chargeability of VAT (“subsidiary” cause for chargeability of VAT) if the service has not yet been completed. Transfer of activities, the holding of shares, the inclusion of certain mandates (including director’s mandates) within the law firm. However, lawyers are not subject to VAT for the transfer of activities, the holding of shares, the inclusion of certain mandates (including director’s mandates) within the law firm, in companies, as a deputy judge, within the orders, etc. Until the end of 2012, the issuing of an invoice before the service had been completed was also a subsidiary cause for chargeability of VAT. A transitional arrangement ensures that this also remains the case for invoices issued in 2013 or 2014, if the party liable for VAT so chooses. Special arrangement for associate lawyers and trainee lawyers. Associate lawyers and trainee lawyers are also regular VAT payers. But they can opt for a special arrangement that allows them to complete only a limited number of formalities. In that case, however, they are not entitled to a VAT deduction. However, if they opt for this special arrangement, they are excluded from the “exemption scheme for small enterprises” (annual turnover < EUR 5,580). practical examples illustrating the impact of these rules. A case completed and paid for in 2013. For a legal procedure that was completed in 2013, the taxable event also takes place in 2013, but the lawyer is still an exempted taxpayer. He or she therefore does not charge VAT. Principles of chargeability of VAT The client only pays in 2014. If the client is itself a VAT payer (B2B relationship), the normal rules apply. The service was completed in 2013 and the cause for chargeability of VAT therefore takes place in 2013. VAT is then not due, even though the client only pays in 2014. The rules for chargeability of VAT determine when the VAT must be paid to the Treasury. For If the client is a private individual (B2C relationship), then in application of a special transitional arrangement the lawyer can still apply the VAT exemption, if he or she issues a detailed invoice no later than on 31 January 2014 or receives payment from the client before that date. If he or she does not issue an invoice and payment is made after 31 January, VAT is due. This is because the special transitional arrangement no longer applies after that date. Continuous service performance. The client pays a bill in 2013 for the services already provided. In the case of an interim bill, the taxable event takes place at the end of each billing period. So no VAT needs to be applied for payments in 2013. The client only pays in 2014. If the lawyer can indicate which services were materially provided up to and including 31 December 2013 and which were materially provided as from 1 January 2014, only the latter services are subject to VAT. In this case, the invoice must also be issued no later than on 31 January in relation to services materially provided in 2013. If this division cannot be made, VAT is due on the entire fee. Charge a large advance in 2013? No, it makes no sense to charge a large advance in 2013 without VAT. The VAT administration only accepts an advance of up to 25% of the fee. BDO-newsletter 17 TAX Cindy De Bock - Erwin Boumans - Submitting periodic VAT returns; - Keeping VAT accounts: a purchase and sales ledger, a cash receipt ledger, and a table of fixed assets - Submission of an annual client sales listing; - An intra-community sales listing (where applicable) The circular also addresses a large number of other services, such as legal advice outside legal proceedings, services provided to governments; the relationship with insurers, etc. n Always charge 21% VAT? Legal services provided as from 1 January 2014 that take place in Belgium are in principle subject to the standard VAT rate of 21%. There are also a few exceptions: - A number of specific services that can still be exempted from VAT, such as e.g. family or debt mediation; - Services of liquidators, for wich a mandatory reverse charge mechanism by the bankrupt parties applies. - Pro bono services that are subject to a 0% rate, but retain the right to input VAT deduction. VAT is normally charged on the total amount. Exceptions to the rule are those taxes, duties or charges that are “advanced” in the name and for the account of the client (e.g. registry or court fees, bailiff’s fees). 18 2thepoint | #1 | 2014 What about professional confidentiality? Discretion in the description of the services on the invoice is extremely important to preserve the professional confidentiality of the lawyer. However, invoice details are important for the VAT inspector to be able to verify the correct processing of the operations carried out. The VAT administration therefore accepts that the description remains limited to indicating lawyers’ services, followed by the indication that the operations are related to the professional or private activities of the client. Other requirements and formalities Besides VAT identification and invoicing requirements, there are a number of other requirements: For more information : Do not hesitate to contact the Centre of Competence VAT: [email protected] TAX Bart Caers Fairness tax: some clarifications The law of 30 July 2013 introduces a socalled “fairness tax” for large companies as from assessment year 2014. This tax is due on profits paid as dividends that are not subject to effective taxation through the application of the notional interest deduction for the year and/or tax losses carried forward. The administration clarifies the new regulations. Fairness tax and purchase bonuses The eligible dividends are those listed in Article 18, paragraph 1, 1° to 2°bis of the Income Tax Code92 (ITC92) - Regular dividends; - Capital repayments (with the exception of capital paid up for tax purposes); - Repayments of issue premiums and amounts subscribed to at the time of participation certificates (with the exception of capital paid up for tax purposes). During the parliamentary discussion of the bill, the Minister for Finance confirmed, despite this legal delineation, that dividends paid as a result of a purchase of own shares are eligible for the application of the “fairness tax”. A parliamentary question was put to the Minister to remove the ambiguity that had arisen. The answer to this parliamentary question states that purchase bonuses qualify as dividends for tax purposes, but lie outside the scope of the “fairness tax”. Fairness tax and investment companies In this case, the question arises of whether the “fairness tax” also applies to investment companies, specifically the public and institutional BEVEK/SICAV (openend investment companies), BEVAK/ SICAF (closed-end investment companies) and VBS/SIC (debt investment firms). Taking into account the broad scope of the “fairness tax”, it would initially be possible that the dividends such companies pay are subject to the levy. However, for a distribution BEVAK/SICAF, for example, this would be very damaging. part of the taxable base, and the dividends received are excluded from the deduction for definitively taxed income. Finally, investment companies are excluded from the application of notional interest deduction. Because in principle their taxable base is always positive, fiscal losses (carried forward) can also not occur. This analysis means that the taxable base of the “fairness tax” is reduced to zero as far as investment companies are concerned and that therefore no separate tax can be owed. n For more information : Do not hesitate to contact the Tax Department : [email protected] Although an investment company is subject to the normal rate of corporate income tax, the taxable base only consists of the abnormal or benevolent advantages and the disallowed expenses (other than depreciations and losses on shares). Furthermore, the dividends paid by investment companies are not BDO-newsletter 19 TAX Transfer pricing and customs: A forced marriage Due to globalization and consequently the frequency of international transactions, the importance of transfer pricing and customs has significantly increased. Tax and customs administrations, even within one country and sometimes within the same government department, have different approaches: tax administration focuses on intra-group sales’ prices that may be perceived as higher than they should be; whereas customs authorities control imported goods for which prices may be perceived as lower than the market price. While both administrations seek to achieve the same goal, which is arm’s length pricing, customs and fiscal examinations are forced to follow different regulations and have possible contradictory interests. 20 2thepoint | #1 | 2014 Tine Slaedts - Pieter Haesaert Transfer pricing: Basics Customs valuation: Basics The basic principle in transfer pricing is the arm’s length principle as described in the OECD Transfer Pricing Guidelines. The transfer price between related parties impacts the profitability of the different entities and hence the tax revenues of the different countries. Local tax authorities seek conformity with the “arm’s length principle” for intercompany transactions in order to safeguard local tax revenues. The arm’s length principle is based on the OECD guidelines, which forms the basis of bilateral tax treaties involving OECD member countries and an increasing number of nonmember countries, and states: “[Where] conditions are made or imposed between the two [associated] enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.” Customs valuation is based on the GATT/WTO Valuation Code. The GATT/WTO Valuation Code definition of “customs value” constitutes the basis on which WTO members have drafted the definition of customs valuation in their own customs legislation. In the European Community, the basic customs valuation rules and defintions are found in Articles 28-36 of the Community Customs Code and in Articles 141-181 and Annexes 23-29 of the Community Customs Code Implementing provisions. The OECD Transfer Pricing Guidelines also describe specified methods to determine transfer prices of which the transactional net margin method is most commonly used. Finally, many countries have issued guidelines on transfer pricing documentation to substantiate en justify transfer prices of goods, services, intangibles, finance transactions, etc. In determining the customs value, different methods are defined which need to be used in hierarchical order. The primary method is the transaction value of the imported goods. The transactional value of imported goods between related parties can only be accepted if it can be demonstrated that the price of the imported goods is at arm’s length. Furthermore, this transaction value must be adjusted in certain specifically defined conditions. Transfer Pricing VIEW Valuation View Entity based Product based Identify the main income tax change Management fees Identify the main customs charge Financing costs Royalties Marketing costs Compensation payments Overhead Provided materials Selling price BDO-newsletter 21 TAX CUSTOMS Parent company Delivery TP = 100 Subsidiary Sales tax question : From BE perspective : import VAT, delivery of tangible goods taxable ? Income tax questions : is TP arm’s length ? BE perspective : TP too high ? From US perspective : TP too low ? Customs and transfer pricing: Conflict of interest Both tax and customs administrations often set rules independently for the same transaction and/or good. Tax authorities seek conformity with the OECD Transfer Pricing Guidelines which have been put in place in many countries whereas customs authorities conform to Article VII of the General Agreement on Tariffs and Trade (GATT) Valuation Code. The difference in transfer pricing and valuation view creates an atmosphere of uncertainty and complexity. It also leads to increases in implementation costs and compliance, absence of flexibility in the conduct of business operations, and last but not least creates a significant risk of penalties. Indeed, even when a company complies with both the OECD guidelines/principles and the World Trade Organization 22 2thepoint | #1 | 2014 Conflict of interest Customs question : Is the delivery subject tu customs ? If so : what is the appropriate customs ? BE perspective : TP as customs value too low ? (WTO) Valuation Agreement, there is no guarantee that there will not be a dispute between two countries or two administrations in the same country on the determination of the arm’s length price. This means that valuation conflicts can arise not only prior to but also after an audit. Given the significant increase in the volume and also complexity of intercompany transactions, the divergence of customs and transfer pricing valuation presents an obstacle to the liberalization of trade and inhibits international development for companies of all sizes. The table below provides a summary of those factors highlighting the differences between transfer pricing and customs. Factor Transfer pricing Customs Taxable event Sale or purchase of the goods Importation of goods into the country Rationale Avoiding shifting of income Modelling of international trade Relevant time for assessing value Date of sale or purchase Date of importation Time of audit Year(s) after the sale transaction Time of importation or years after the transaction Goals pursued by authorities Decrease in value Increase in value Tine Slaedts - Pieter Haesaert Joint-Venture BDO Customs4trade a case study A common situation, where transfer pricing may trigger customs issues, relates to a retrospective adjustment of the transfer price paid for goods in a cross border situation. Assume you are a company acting as a limited risk distributor based in China. You purchase and import goods from a Belgian related company. The distribution activities will be remunerated using the transactional net margin method with a target operating margin on sales. At the beginning of the year, the transfer prices will be set based on budgets provided by the Chinese entity. Hence, products will be imported based on the budgeted transfer price. At year-end (or more frequently), a transfer pricing adjustment is made to bring the actual operating margin realized by the Chinese distributor in line with the target operating margin. From a customs point of view, the year-end adjustment will involve a correction to the declared customs value of the import transactions that are affected by the yearend adjustments. If the price is adjusted upwards, both the customs value and the amount of customs duties will be increased. If the price is adjusted downwards, the effect is the opposite: both the customs value and the amount of customs duties will be decreased. In the former situation, the customs authorities will expect a regularization of the declared customs values and additional customs duties to be paid. In the latter situation, the importer may be entitled to a refund of customs duties. Furthermore, in such a cases of structural year-end adjustments, it is advisable to conclude a customs valuation decision with customs to agree the frequence, timing and methodology for these adjustments. BDO Belgium and Customs4Trade (customs4trade.com) have concluded a structural cooperation agreement through the joint venture BDO Customs4Trade. Customs4Trade is an independent consulting firm that specialises in customs, excises and international trading and has been active in Belgium for about 10 years. Under the leadership of its founder, Pieter Haesaert, the company has expanded to one of the most important consultants in this discipline in Belgium. The further development of this new service will be taken care of by Pieter and Erwin Boumans, Chairman of the Centre of Competence VAT of BDO Belgium, and this with their team of about 15 indirect tax specialists (VAT, customs and excises). Thanks to this structural collaboration, BDO Belgium takes up a key role in the field of indirect taxes within the BDO network. is highly recommendable to review pricing methodologies and agree with the customs administration the procedure to reassess or confirm the customs valuation of imports in an efficient way and compliant way. n Conclusion Two different valuation regimes applicable to the same transactions forces importers to take into account the consequences of transfer pricing methodologies when assessing custom valuation. It For more information : Do not hesitate to contact Tine Slaedts: [email protected] or Pieter Haesaert: [email protected] Schematic overview of the flows Residual profit Limited risk distributor Principal Co Physical flow Invoice flow Service flow Bookkeeping services Sale of finished goods Customer Target operating margin BDO-newsletter 23 PARTNERSHIP NEWS The Belgian Institute for Family Business commissioned a study into the impact of private equity in family businesses. Family businesses are a key driver of our economy: more than 75% of Belgian businesses are in family hands or are controlled by a family reference shareholder. At the same time, many family businesses are facing a major challenge: in the new few years many business leaders from the baby boom generation will retire. They must therefore look for successors. And that is not (or at least no longer) an easy matter. The Belgian Institute for Family Business (IFB) wants to be a shining beacon for these businesses. BDO spoke to its Managing Director Jozef Lievens. 24 2thepoint | #1 | 2014 Professionalisation and private equity go hand in hand Why do you attach so much importance to family businesses? « Family Businesses are to be nourished, as they are embedded in our region and have a natural strong dynamism and ambition to grow. Jozef Lievens: “Family businesses form a vital link in our economic fabric, and will help provide the necessary economic growth. Anyone who hears family businesses mentioned will quickly make the connection with SMEs. But did you know that more than half of Belgian businesses with a turnover of more than EUR 200 million are family businesses? And that family businesses account for almost half the employment in our country? These are businesses we must nourish, because they are embedded in our area and are naturally acquainted with a strong dynamism and ambition to grow.” But haven’t studies shown that in many family businesses, the succession has not yet been organised ? Jozef Lievens: “That’s true. We have a whole generation of business leaders from the baby boom generation who will retire in the next five to ten years. Almost half of the over-55s have not yet given this much thought. Fortunately, we see that many family successors still have a great belief in continuing the business in the future. The IFB coaches these potential successors through the ‘Opvolgersacademie’ (Successors’ Academy) project. Through exchanges of experience among participants and with practical testimonials from experienced business owners, we can speak openly about subjects such as dealing with the transferor, making governance more professional, etc.” » In the past year you have also paid considerable attention to private equity. Why was this? Jozef Lievens: “To realise their plans for growth, family businesses also need external financing in a number of cases. One of the options is to attract private equity investors. Our experiences show that this happens significantly more today than say 15 years ago. Nevertheless, the process of opening up family businesses to private equity investors too often remains unknown or unpopular. We therefore asked Professor Johan Lambrecht of HU Brussels to carry out a study. He mapped out the experiences of family businesses with private equity and the impact of this method of financing.” What were the main conclusions? Jozef Lievens: “A private equity investment is an attractive form of financing that can carry a family business forward in various areas: not only financially, but also in terms of ambition and possibilities for growth. This study also confirms that professionalisation is an asset in a family business. For example, a well-structured business, with professional management, a clear business BDO-Newsletter 25 « Make sure to prepare the exit thoroughly, for clear arrangements and open communication facilitate the process. » plan, transparent reporting and good governance has a better chance of a private equity investment.” “In general, family businesses that have experience of private equity investments appear satisfied with the cooperation. The in-depth interviews of our study show that the investor does not always meet every expectation, but that he or she has still provided clear added value, for example in terms of corporate governance and finances.” The IFB has also drawn up a series of recommendations for private equity. What are the key issues? Jozef Lievens: “I will outline three of them: -Firstly: Attracting external capital is a process in which all those involved (the management, the family, the company) must be prepared to enter a new phase. After all, it demands a clear strategy and an open mind not only to attract capital, but also to allow participation in the operations of the business. -Secondly: look for the right match and make clear agreements. When a family business goes looking for a private equity partner, it must look for a party that best supports the objectives and culture of the family business. After the round of negotiations, a solid shareholders’ agreement must be drawn up that also describes the expectations of both sides and the role(s) of the private equity investor. The art of making a success of a cooperation between a private equity investor and a family business consists of allowing the individuality and character of 26 2thepoint | #1 | 2014 the business to continue while encouraging professionalisation and growth. -Finally: develop a long-term vision and be prepared for the exit. A private equity investment is de facto finite in time. The family business must therefore produce a long-term vision to guarantee continuity even after the private equity partner has departed.” Is such an exit easy to swallow for a family business? Jozef Lievens: “I think it is a process of growth. Family businesses attach a great deal of value to the relational aspect. But a private equity investment is above all a means to help your business move forward and bring a partner on board temporarily in order to do so. It is therefore best to prepare properly for the exit. Clear agreements and open communication can facilitate that process. The family business must at all costs avoid becoming deadlocked or entering an impasse following a departure or change of investor(s). An exit should actually always result in a stronger, more professional business.” n For more Information: Website: www.familiebedrijf.be Twitter: @IFB_be CORPORATE News Opening of BDO office in La Hulpe The offices in Lasne and Wavre were merged shortly before Christmas and were relocated to the Nysdam Office Park in La Hulpe. Our colleagues have been working from the new office since Monday, 23 December. The building is surrounded by greenery and the office is spread over 2 floors: on one floor are the staff offices while the other floor consists of meeting rooms for client consultations. Just as in Antwerp, the 75 members of staff operate according to the principles of the Activity Based Office. Flex Office, Clean Desk and Less Paper have been introduced to guarantee the comfort of staff while at work. We wish our La Hulpe colleagues every success in their new working environment. Partnership with M-Proconsult Figures for 2012-2013 6% BDO Belgium 34% Production per business line (Million EUR) 15% 15% 37% 23% 20132012 70% Partners & Staff (Average FTE) 2013 2012 Audit & Assurance 20.8 19.4 Accounting & Reporting 19.4 17.7 Tax & Legal 13.5 12.2 Special Advisory Services 3.6 3.0 Partners Professional staff Support staff 66 322 71 64 305 66 Total Total 459 435 57.3 52.3 M-Proconsult is led by Ria Mathijssens and specialises in socio-legal advice in the broad sense of the word. Since 2 January 2014 the M-Proconsult team of 5 people has been part of the BDO office in Antwerp, where it is helping to develop BDO’s legal department. We welcome the ladies to our organisation and wish them every success at BDO. Other staff-related information Revenue per staff Staff retention % (wheighted average) 2013 2012 125,000 120,000 88.5 88.9 Number of staff October 1st 558 Partnership with Perspective Consulting (PPC) 516 BDO international Partners & Staff TURNOVER (Million EUR) 20132012 (Average FTE) Turnover 4,9204,630 Partners & Staff 56,389 54,933 Number of Offices 1,264 1,204 Number of Countries 144 138 2013 2012 Fee Split (%) Audit/Accounting Tax Advice Other PPC is led by Jean-Louis Dethier and specialises in the public sector (one of BDO’s specialisms). Since the end of December the PPC team of 7 people has been part of our new office in La Hulpe. We welcome our new colleagues and are convinced that they will fit in perfectly with the Public Sector team for Wallonia and Flanders. 6161 18 18 2121 BDO Hasselt celebrates its 10th anniversary On the evening of Thursday, 5 December BDO Hasselt welcomed 250 clients and relations to the Kasteel van Hoen to raise a glass to the past 10 years and look forward to the future together. It was an enjoyable party in a beautiful setting. Among other things, our colleagues from BDO Hasselt put together an amusing newspaper - Het Belang van BDO - and prepared delicious BDO cupcakes. Agenda ☛ Buy your own company conference (2nd edition) - 27 February 2014 (Vlerick-BDO) ☛ Hoe onderneem ik een succesvolle management buy-out of management buy-in (2nd edition)- 7 sessions spread over the period April 2014- September 2014 (Vlerick-BDO). BDO-Newsletter 27 BDO is always on the lookout for new talent BDO is currently looking to fill the following positions: Accountancy l Partner Accountancy (Gent) l Senior Manager Accountancy (BXL Airport) l Senior Manager Accountancy (Roeselare) Legal l Senior Advisor Legal (Antwerpen) l Senior Legal (Liège) Corporate Finance Supervisor Corporate Finance (Gent) l Senior Corporate Finance (BXL Airport) Tax l Manager Tax (Liège) l Manager Tax (BXL Airport) l Supervisor Tax (La Hulpe) l Financial audit Senior Financial Audit (Roeselare) l Public sector Advisor Public Sector (Antwerpen) l Reporting BI Consultant/Database Expert Reporting (BXL Centre) l our offices BDO is also looking for nearly graduated students who can start working from 1 October 2014 as an Audit, Tax or Accountancy Assistant. Would you like more information on these vacancies? Then go to: http://jobs.bdo.be BDO Antwerpen BDO Gent BDO Liège BDO Brussels (AIRPORT) BDO Hasselt BDO Namur-Charleroi BDO Brussels (CENTRe) BDO La Hulpe BDO Roeselare Uitbreidingstraat 72/1 B-2600 Antwerpen T. +32 (0)3 230.58.40 F. +32 (0)3 218.45.15 [email protected] The Corporate Village Da Vincilaan 9, Box E.6 B-1935 Zaventem T. +32 (0)2 778.01.00 F. +32 (0)2 771.56.56 [email protected] Blue Tower Louisalaan 326 bus 30 B-1050 Brussel T. +32 (0)2 640.07.96 F. +32 (0)2 640.53.43 [email protected] Axxes Business Park Guldensporenpark 100 - blok K B-9820 Merelbeke T. +32 (0)9 210.54.10 F. +32 (0)9 232.43.40 [email protected] Prins Bisschopssingel 36/3 B-3500 Hasselt T. +32 (0)11 28.60.60 F. +32 (0)11 28.52.78 [email protected] Nysdam Office Park Avenue Reine Astrid 92 B-1310 La Hulpe T. +32 (0)2 352.04.90 F. +32 (0)2 351.04.87 [email protected] Rue Waucomont 51 B-4651 Battice T. +32 (0)87 69.30.00 F. +32 (0)87 67.93.58 [email protected] Parc Scientifique Crealys Rue Camille Hubert 1 B-5032 Les Isnes T. +32 (0)81 20.87.87 F. +32 (0)81 20.14.14 [email protected] Accent Business Park Kwadestraat 153/5 B-8800 Roeselare T. +32 (0)51 26.08.40 F. +32 (0)51 24.10.89 [email protected] BDO Services CVBA / SCRL, a limited liability company incorporated in Belgium, is a member of BDO International Limited, a UK company limited by guarantee, and forms part of the international BDO network of independent member firms. 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