A 2026 Dutch appeal ruling has increased attention on STAK-based succession in real-estate-rich family companies. Transfers of certificates can raise transfer tax questions even when business operations continue and no property is sold, making control, economic ownership, and continuation evidence central to the file.
Why this matters
A STAK can help a founder pass economic value to the next generation while keeping legal shares and voting control separate. That can be useful for family governance. It can also create transfer tax risk when the company is rich in real estate. Dutch transfer tax rules can treat certain shares or certificates in a real-estate-rich entity as a fictitious acquisition of immovable property. If the family business succession exemption applies, the cash impact may be limited. If the exemption is challenged, the exposure can be large. For 2026, the transfer tax rate for non-residential real estate is 10.4%. The key point for business owners is simple: a certificate transfer is not just paperwork. The file must show what moved, who received it, who controls the structure, where the economic value sits, and how the business continues.
Example
In the Amsterdam appeal case, a father had placed BV shares in a STAK. The STAK issued certificates, and the father later gifted all certificates to his child. The BV exploited real estate through subsidiaries. The transfer tax return treated the transaction as a fictitious acquisition of immovable property and claimed the family business succession exemption. The tax inspector later imposed an additional assessment and tax interest running into millions. The court confirmed a reduced outcome and did not accept, on these facts, that full formal control had to pass to the child for the exemption to apply. That does not make every STAK certificate transfer safe. Current policy still takes a stricter view for certificates in real-estate-rich entities because certificates usually transfer economic interest without voting control. A separate 2026 Supreme Court ruling also makes clear that look-through reasoning in transfer tax has limits.
XTROVERSO tips
- Separate the tax regimes Do not mix the WBR transfer tax exemption with the inheritance and gift tax business succession scheme. They are different regimes with different conditions.
- Check the real-estate-rich entity question first Before discussing the exemption, check whether the company may fall under the transfer tax rules for real-estate-rich entities. If it does, shares or certificates can carry transfer tax consequences.
- Read the STAK documents against the tax position Review the STAK statutes and administration conditions. Look at voting rights, board powers, economic pass-through, transfer limits, and redemption rules. These documents explain the control and value split.
- Build the continuation evidence before signing The file should show that the business continues. Keep board minutes, management roles, contracts, financing documents, valuation work, and tax return positions aligned.
- Put phased transfers on one calendar If succession happens in steps, map every gift, contribution, restructuring, filing, and deed. Later steps can affect an earlier exemption position.
- Estimate the cash risk Model the transfer tax, tax interest, adviser costs, and financing impact if the exemption is challenged. Real estate value can be high while operating cash is limited.
Need a clear view of your STAK succession file before the next step is signed?
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 - Amsterdam Court of Appeal on certificates, OZR, and article 15(1)(b) WBR
- Rechtspraak - Supreme Court limit on doorkijkarresten
- Wettenbank - Besluit Ondernemingsfaciliteiten on OZR shares and certificates
- Belastingdienst - Knowledge group on phased family transfer and later BV contribution
- Wettenbank - WBR article 15 family business succession exemption
- Wettenbank - WBR article 4 OZR shares as fictitious real estate
- Belastingdienst - Transfer tax for business assets and OZR shares
