A Dutch appeal court has confirmed that a direct payment within a BV group can create box 2 tax for the DGA. The payment route, company decisions and tax records must align in the same tax year. Later paperwork may not change the taxable event.
Why this matters
The operating BV, holding BV and DGA each have a separate legal and tax position. That remains so when one founder signs the minutes, approves the payment and files the return. An agio balance does not make a payment tax-free. The resolution, capital record, bank transfer, dividend-tax filing and box 2 return must cover the same payment. If they do not, the DGA may receive an unexpected assessment after year-end.
Example
In the case, an operating BV paid €116,324 straight to its DGA. The holding BV, as shareholder, was entitled to the distribution. The court treated the payment as a concealed distribution from the holding to the DGA. It upheld the additional 2019 income-tax assessment. Documents and actions from 2023 did not move the benefit to another year. They also did not make it a tax-free capital return.
XTROVERSO tips
- Map the payment route. Record which BV holds the cash, which company is entitled to it and who receives it. Check that route before the bank transfer is sent.
- Make decisions before payment. Prepare the required shareholder and board decisions before releasing cash. For a capital return, have your adviser check the formal capital requirements first.
- Make the full file agree. Match the resolution, payment instruction, bank statement, ledger, equity record, dividend-tax return and personal box 2 position.
- Review recent direct payments. Check the current and previous financial year for dividends, private withdrawals, shareholder loans, and payments booked as agio or capital returns.
- Reconstruct errors honestly. If records conflict, establish what happened and when. Later minutes or journal entries cannot rewrite an earlier tax year.
Unsure whether a planned or past BV payment follows the right route? We can review the file with you
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 - Concealed distribution through a holding structure
- Belastingdienst, Kennisgroepen - Formal conditions for a return of capital and agio
- Belastingdienst - Current classification of regular substantial-interest benefits
- Belastingdienst - The tax year and the moment of payment
- Wet inkomstenbelasting 2001 - Wettenbank
- Taxence - Verkapte uitdeling in 2019 belast, herstel faalt in 2023
