A Dutch court ruled on a shareholder who took over his children’s claims against a failing BV. Afterward, he waived those claims. This did not increase the acquisition price of his shares. His box 2 loss after liquidation could therefore be lower.
Why this matters
Private cash lost by a shareholder may not raise the tax basis of the shares. Purpose, timing and legal form determine the tax treatment. Family members sometimes lend to a BV with no cash. Taking over a child’s claim can primarily protect that child. A recognised box 2 loss can generally offset positive box 2 income from the previous year and the next six years.
Example
A property BV owed the shareholder’s three children €114,635. Before liquidation, he took over their claims and then waived his own claim against the BV. He recorded the amount as additional capital. The court found that his main purpose was protecting the children. As a result, the share acquisition price did not increase. Security for the children covered rental income already under attachment. It had little or no value.
XTROVERSO tips
- List every family balance. Match each family loan or claim to its contract, bank payment, ledger entry and creditor record. Include the amount, interest, repayment terms and current value.
- Record each person’s role. Note whether someone acted as shareholder, director, parent, creditor or guarantor. A person can hold several roles. Keep each role separate in the file.
- Check the BV’s purpose. Write down what the transaction was meant to achieve for the BV. Keep the cash forecast, recovery plan and board decision from that date.
- Value security realistically. Review earlier claims, attachments, ranking and collectability. A pledge has little value if the related cash or asset is unavailable.
- Keep three calculations. Separate the household cash loss, the BV’s creditor position and the possible box 2 loss. Do not count expected tax relief as available cash.
- Review the file before acting. Check the tax effect before assuming debt, waiving a claim or liquidating the BV. Later paperwork cannot change the original purpose.
Need to check how a family loan, debt assumption or waiver affects your BV and box 2 position?
The data, sourcing, and analysis behind this article were conducted by Linda Pavan. AI was not used to identify sources, build the factual basis, or produce the analytical judgment contained here. AI was used only as a drafting aid. The final English text was personally reviewed, edited, and approved by Linda Pavan before publication.
References
- Rechtspraak - Court ruling on debt assumption and waiver before liquidation
- Wettenbank - Statutory basis of acquisition price
- Belastingdienst - Current box 2 loss mechanics and acquisition price
- Belastingdienst - Use and timing of a realised box 2 loss
- Taxence - Schuldoverneming voor kinderen verhoogt box 2-verlies niet
