Reconciling France and Belgium

In light of families’ unquestioned propensity for greater mobility, the settlement of successions has become more complex with so many cases now incorporating an international element. The place of residence of the deceased and heirs and the location of the assets may give rise to double taxation at the time of succession. It is therefore important to stress that international estate planning must cover both the civil and fiscal dimension.

Despite its international expertise and products adapted to such mobility, Luxembourg does not constitute an exception, and estate planning through life assurance products must also be conducted with caution if double taxation is to be avoided on settlement of the contract. Located between Belgium and France, insurance companies in Luxembourg deal with numerous cases involving both of these jurisdictions.

In order to fully grasp the difficulties that may arise out of Franco-Belgian estate planning, we must first outline the general guiding principles followed by a brief description of the rules of succession applicable in each country, to ultimately conclude to any possible reconciliation between these principles in order to create an effective estate management framework.

I. Harmonisation at the civil level without fiscal impact

The EU Regulation of 4 July 2012 harmonises the rules covering competence, applicable law, acknowledgement and implementation of decisions and acceptance and execution of authentic instruments covering succession.[1] It applies to successions opened from 17 August 2015 and covers all aspects of civil law, yet specifically excluding tax, customs and administrative matters.[2]

It is therefore entirely possible that, within an international context, the applicable civil law may differ from the pertinent tax law. Property vested under the law of one country may therefore be taxable in another. As the tax treatment of life assurance contracts differs from one country to another, it is pertinent at this stage to focus on the specific regimes applicable in France and Belgium.

II. French tax regime applicable to life assurance contracts

a. General principles

In principle, amounts paid on the death of the life assured to a given beneficiary do not form part of the estate and are therefore excluded from the calculation of the reserved and disposable portion of the succession.[3] Yet there are a number of exceptions, notably should the premium be considered as “manifestement exagérée” which is established on a case-by-case basis, including in light of the policyholder’s age, family situation, wealth and suitability of the contract.

Furthermore, in the event of no beneficiary being designated, of refusal on the part of the beneficiary, or where the beneficiary dies before the life assured, the amounts paid out by the insurer on settlement of the contract are reincorporated within the estate of the life assured and will be subject to death duties in the same way as the rest of the deceased’s estate.[4]

French legislation distinguishes between different types of life assurance contracts in order to apply specific tax treatment on the death of the life assured. Such treatment will notably depend on the date the contract was entered into and the age of the life assured at the time premiums were paid. Accordingly, after specific allowances, the amounts will be subject to death duties (by way of exception)[5] or to specific flat tax as follows [6] :

The amounts paid by the insurer on the death of the life assured to their spouse, partner (“Pacs”), or siblings (subject to certain specific conditions) are exempt from death and other specific duties, regardless of the age of the life assured at the time the premiums were paid. For any other beneficiary of a contract taken out after 20 December 1991 for which the premiums are paid after the 70th birthday of the life assured, death duties will be applied depending on the family link between the life assured and the beneficiary (with a maximum rate of 45% for the direct line from EUR 1,805,677).[7]

Furthermore, and still within the context of a contract taken out after 20 December 1991 for which the premiums are paid after the 70th birthday of the life assured and given the application of death duties in accordance with ordinary law, the various allowances available under ordinary law[8] may be added to the overall allowance of EUR 30,500. Finally, it should be noted that capital for which social contributions were not paid during life will be subject to them at a rate of 17.2% on death.

b. When do French death duties apply?

Various criteria trigger the application of French death duties:[9]

The fact that the deceased was French tax resident at the time of death;
The fact that the heirs/beneficiaries were French tax residents at the time of death and had been so for a period covering at least six of the past ten years;
The fact that the transferred asset (movable or immovable) is located in France.

Accordingly, and subject to the application of any double tax treaties, where the deceased was French tax resident at the time of death, death duties apply to their worldwide assets.[10] Furthermore, where the deceased was not French tax resident at the time of death, in the event of heirs/beneficiaries being French tax residents, death duties apply to worldwide assets[11] or, where neither the deceased nor the heirs/beneficiaries are French tax resident, only to assets located in France[12].

III. Belgian tax treatment of life assurance contracts

a. General principles

The tax implications of opening a succession on death unquestionably include the obligation for the heirs to pay the death duties calculated on the basis of the inheritance declaration previously submitted by the heirs, within 5 months of the deceased’s passing.

Determining the amount of such death duties is a competence lying with the region (Brussels-Capital, Wallonia, Flanders) in which the inheritance declaration was submitted, namely the region in which the deceased had their most recent tax residency. Further, the family link between the deceased and the beneficiaries of the succession will determine the applicable rate of death duties. Set at regional level, death duties in Belgium vary between 3% and 80%.

More specifically regarding life assurance contracts, the structure of the contract may constitute an effective remedy to the high death duties normally applicable by the opening of the succession. Regionalisation within Belgium does not make matters straightforward in this area.[13] Most noteworthy (and sometimes startling) are the positions adopted by the competent authorities in the Flemish region regarding the calculation, verification and payment (or even reimbursement) of death duties and their registration.[14]

The pertinent articles of the Inheritance Tax Code (regions of Wallonia and Brussels-Capital) and of the Flemish Tax Code (region of Flanders) signify that a “stipulation pour autrui” (provision in the contract conferring a benefit to a third party) is subject to death duties.[15] This particularly pertinent provision is an essential criterion for any estate planning activity. In practice, the applicable legal texts signify that a “stipulation pour autrui” is always present in a life assurance contract where the life assured and the beneficiary are not the same person.

An initial way of avoiding death duties by using a life assurance contract structure would be, for example, to convert a “stipulation pour autrui” into a “stipulation pour soi-même” (personal stipulation, not taxable as does not fall within the scope of application of the law), by means of assignment of rights in the contract (commonly known as “donation” of the contract). This potentially results in the application of gift taxes (3% or 3.3% for the direct line, depending on the region), thereby excluding any application of death duties.

b. When do Belgian death duties apply?

The application of death duties in Belgium can be categorised as follows:

If the deceased was a tax resident of Belgium at the time of death, death duties are due on worldwide assets, less any debts secured against aforementioned assets.
If the deceased was a tax resident of a foreign country at the time of death, death duties are due on the value of immovable property located in Belgium. Debts secured against such property are deductible under certain conditions. Progressive rates apply that vary by region (Brussels, Flanders, Wallonia). We will talk more specifically about transfer duties.

The essential criterion for establishing the application of Belgian death duties therefore remains the tax residency of the deceased (not only Belgium but more widely, namely the region in which the concerned Belgian tax resident resides).[16]

We therefore note that the criteria for assigning powers of taxation regarding death duties vary from one country to another. France and Belgium are no exception to this observation. It remains to be seen whether any effective fiscal reconciliation can be established between the two regimes… Such an analysis will be covered in a subsequent contribution.

If you are interested in these case studies, download our e-book #Success in #Succession Part I and Part II

Authors:

Fanny PERPERE – Wealth Planner

Nicolas MILOS – Senior Wealth Planner

[1] REGULATION (EU) No. 650/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 4 July 2012

[2] REGULATION (EU) No. 650/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 4 July 2012, Article 1.1

[3] Art. L 132-12 of the Insurance Code (C.ass.)

[4] Art. L 132-11 C.ass.

[5] Art. 757 B of the General Tax Code (CGI)

[6] Art. 990 I CGI

[7] Amount applicable for 2019

[8] Art. 779 CGI and Art. 788 CGI

[9] Art. 750 ter CGI

[10] Art. 750 ter 1° CGI

[11] Art. 750 ter 3° CGI

[12] Art. 750 ter 2° CGI

[13] Law of 16 January 1989 on the financing of the communities and regions.

[14] Reference is made on this matter to a previous contribution entitled “Reforming the Belgian Civil Code: VLABEL is adapting quickly… maybe even too quickly”, N. MILOS.

[15] Article 8 of the Inheritance Tax Code; Article 2.7.0.1.6 of the Flemish Tax Code.

[16] Region of Brussels-Capital, Wallonia or Flanders. It should be noted that if the deceased was a tax resident in more than a single Belgian region during the 5 years preceding death, the applicable rates will be those of the region in which they were a tax resident for the longest period.

Overview and issues

On 20^th March 2018, the French and Luxembourg governments signed a new tax treaty (the “Treaty”). This new agreement is in line with developments in the BEPS (Base Erosion and Profit Shifting) project initiated by the OECD (“Organisation for Economic Cooperation and Development”). The renegotiation and complete overhaul of the treaty concluded in 1958 (and modified by four successive amendments) marks a desire to integrate the new international tax standards and bring them into line with the new model developed by the OECD in 2017.

Luxembourg and France have begun their internal ratification procedures. This process may therefore be finalised within a matter of weeks, and the treaty should, in all likelihood, be applicable as of 1^st January 2019.

Overview of the key measures

The main objective of this double taxation Treaty is obviously the resolution of potential double taxation in cross-border situations, but not only this. The spirit of the treaty is also clearly to combat potential situations of non-taxation, such as via double exemptions. In this respect, the preamble could be used to interpret the provisions of the different articles.

In addition, and unusually, it is accompanied by a significant new protocol emphasising anti-abuse measures.

Mechanisms to eliminate double taxation

Under the Treaty, double taxation is eliminated via tax credits, replacing the current tax exemption method.

The exemption method eliminates taxation in potential double taxation situations. For example, in the case of income earned in one State and paid to a resident of another State, the treaty will determine which of the two States is entitled to tax that income. In this situation, Luxembourg generally provides for the total exemption of that income from taxation if it is not deemed entitled to tax it under the double taxation treaty.

The tax credit method does not provide for exemptions, that is to say, for income earned in one State and paid to a resident of another State, the treaty will decide which of the two States is entitled to tax that income. The state entitled to tax the income will actually tax it. However, the other State will not lose the right to tax it. The income in question will be included in the taxable base of the person in the second State and that person receives a tax credit corresponding to the tax already paid in the first State.

This method is less advantageous than the exemption method and may lead to residual double taxation.

While the tax credit method is generally recognised under French law, this method is less common in Luxembourg, which is more likely to apply the exemption method.

The new method provided for under the Treaty may have implications at different levels, such as for French cross-border workers, residents receiving dividends that are not eligible for the parent-subsidiary scheme under domestic law (e.g. dividends distributed by a UCI (Undertaking for Collective Investment) to a Soparfi (holding company)), or for French residents earning director’s fees in Luxembourg.

2. Definition of residence and access to the Treaty

Until now, the concept of residence for legal persons has been based mainly on the concepts of “actual centre of management” and “registered office”.

In order to benefit from the provisions of the Treaty, you must be effectively taxable. Tax exemption or a very low tax rate may justify refusal of the status of resident within the meaning of the Treaty. From this point of view, not surprisingly, this merely reflects the modern interpretations of the concept of residence as well as the recent jurisprudence of the French Council of State.

However, paragraph 2 of the Treaty’s protocol gives UCIs (“Undertakings for Collective Investment”) established in one of the Contracting States that are similar to UCIs in the other State (on the basis of the latter’s domestic laws) access to the benefits of the provisions on dividends and interest for the rights held by residents of one of the two States or of any jurisdiction that has signed an administrative assistance agreement to combat fraud and tax evasion

3. Anti-abuse measures

This new treaty is worded in such a way that it communicates a clear desire to limit any misuse of its provisions. Thus, along with the notion of abuse of rights provided for in each of the States’ domestic laws, this new agreement recognises treaty abuse and allows the contracting States to deny access to the treaty for structures created principally for the purpose of benefiting from the treaty.

Through the insertion of this Principal Purpose Test (“PPT”) rule, the need for economic justification of the creation of cross-border structures is strengthened.

4. Definition of a permanent establishment

Here again, the Treaty extends the concept of permanent establishment, providing that a dependent agent acting on behalf of an enterprise situated in the other State, even without the power of signature, may constitute a permanent establishment if it is recognised that this agent played the main role leading to the conclusion of the contract. This role should be limited to preparatory and auxiliary activities. This new provision is of great importance for banks and insurance companies acting under the freedom to provide services.

5. Wealth tax

Under the new OECD model, immovable property forming part of a resident’s fortune will be taxable in the State where the asset is located.

On the combined reading of Articles 6 and 21, the Treaty could allow for the exoneration of a Luxembourg resident holding property in France through a company from the IFI (“Impôt sur la Fortune Immobilière” or real estate wealth tax).

6. Treatment of capital gains on disposals

Capital gains from the disposal of equity-related securities remain unchanged from the 2014 amendment, and are taxable in the State where the asset is located. What is new in the Treaty is that property dominance will now be analysed over the 365 days preceding the disposal.

Another important point: capital gains arising from a sale by a natural person directly or indirectly holding more than 25% of the capital of a company resident in one of the Contracting States may be taxed in that State if the seller has been a resident of that State at any time during the five years preceding the sale. It will be interesting to see how this provision of the Treaty articulates with the modifications to the French exit tax to be adopted under the budget bill for 2019.

7. Expansion of the concept of “dividend”

On the basis of the Treaty, the notion of dividend extends to everything that falls under the dividend tax regime in the distributing company’s State of residence. Consequently, income deemed to be distributed and other liquidation proceeds will fall entirely within the scope of the concept of dividends provided for in the Treaty.

The 15% withholding tax provided for in Article 10 remains similar to that provided for under the old treaty. The Treaty also grants an exemption from withholding tax on dividends paid by resident companies holding at least 5% of the capital of the company owing the payment over a period of 365 days.

What’s new relates to dividends distributed by certain property investment vehicles such as REITs (“Real Estate Investment Trusts”) or UCITS (“Undertakings for Collective Investment in Transferable Securities”), which will be subject to higher withholding taxes. Thus, a 15% withholding tax will be payable on dividends paid by such vehicles when the beneficial owner directly or indirectly holds a stake of less than 10% of the capital and 30% when the holding exceeds this threshold.

8. Interest

Interest income will no longer be subject to withholding tax; the previous treaty provided for a withholding tax limited to 10%. It should be noted, however, that the Treaty expressly excludes excess interest (that does not comply with the arm’s length principle) from this scheme.

The interest of the new treaty with regard to cross-border life insurance

Based on the above developments, it is interesting to note that the new treaty is generally more restrictive and less beneficial to residents of both States.

The Treaty could have a major impact on some asset structuring. Certainly, while the State where the property is located is entitled to tax it, the State of residence will still retain its taxation right and double taxation will be eliminated thanks to a tax credit in France.

However, this new agreement does not deal with cross-border life insurance plans and is even beneficial for French policyholders who have invested wisely in life insurance policies such as those offered by OneLife.

They will be able to take advantage of the group effect (due to the very large number of policyholders investing via OneLife) on taxation at source of insurance policy income, via:

the integration of a plan similar to the parent-subsidiary plan at the level of the Treaty that allows for the total exemption of dividends paid on life insurance policies from withholding tax;
the maintenance of the reduced withholding tax rate for ordinary dividends that cannot benefit from the aforementioned parent-subsidiary plan;
the elimination of withholding tax on interest paid on life insurance policies.

These provisions further increase the attractiveness of Luxembourg life insurance compared to other asset structuring mechanisms, particularly, but not only, with regard to immovable property.

And finally, life insurance has an additional advantage in terms of anti-abuse provisions because it is also an element of wealth transfer with an attractive tax regime.

Please note that the above developments are merely an overview of some of the provisions of the new Franco-Luxembourg treaty and that the practical impact of these measures will have to be evaluated on a case-by-case basis. OneLife’s experts are available if you have any questions.

Authors:

Fanny PERPERE – Wealth Planner

Jean-Nicolas GRANDHAYE – Corporate Counsel

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Real estate or insurance: you no longer have to choose!

Should I invest in real estate or life insurance products? The clock is ticking… but the dilemma no longer exists: you can do both!

Indeed, the question no longer matters, because the answer is simple: investing in real estate through your life insurance policy is the perfect solution!

Of course, just as you cannot physically carry your gold bars or your barrels of oil to your insurance company, neither can you contribute your house as a life insurance premium!

Well then, what can you do?

Let’s take a look at the investment opportunities and the legal and tax framework for investing in real estate through life insurance.

Investment opportunities

Currently, faced with declining yields in fixed-income funds, investors like you are increasingly turning toward higher-performing investments with limited risk.

Why should you invest in real estate through your life insurance policy?

Whether you want to aim for higher returns, hold a safe and limited-risk asset, boost your savings, benefit from attractive taxation compared to direct ownership or hold an asset outside of your estate, there are many good reasons to invest in real estate through your life insurance policy!

For a limited investment, you can hold an asset that is both secure—because it is based on a diversified real estate portfolio of office buildings, nurseries, medical clinics, retirement facilities, etc. (which also frees you from management burdens like unpaid rents, a lack of tenants, property showings, etc.)—and mutualised, and which yields an average of 5% per year!

What real estate assets can you invest in?

You are probably familiar with the terms SCPI, OPCI, SIIC in France and SIR in Belgium. You may also invest in real estate through listed or unlisted real estate funds, or you may set up your private real estate portfolio within a company and hold its securities within your insurance policy.

As you can see, the possibilities are many and varied. We will focus here on describing the legal and tax framework for holding French SCPIs and OPCIs and Belgian SIRs within your life insurance policy.

Legal and tax framework for investing in real estate through life insurance

Of all the real estate investment opportunities offered through life insurance, the most popular are investments in SCPIs, OPCIs and SIRs. Let’s take a look at them:

a. Sociétés Civiles de Placement Immobilier (SCPI)

Legal framework

Sociétés Civiles de Placement Immobilier (Private Real Estate Investment Fund) are companies whose sole purpose is the acquisition and management of a real estate portfolio for commercial or residential use.

Management is outsourced to an approved management company that is responsible for renting and maintaining the real estate assets.

The sums paid in by subscribers are destined for the purchase and management of the real estate assets.

In return for their contributions (the minimum unit price is €150), the company pays rents to subscribers in proportion to the subscribers’ contributions, less the costs related to the real estate portfolio (maintenance costs, rental management, various works, etc.).

Similar to a direct real estate investment, it allows investors to earn real estate income without the worries of rental management while enabling them to invest even with modest sums.

SCPIs can be closed-end or open-ended funds. Closed-end SCPIs issue new shares until their capital is fully subscribed, after which they are said to be closed, in contrast to open-ended SCPIs which continuously issue and cancel shares.

Taxation

The SCPI is tax transparent, i.e., each investor is individually taxed on the company’s taxable income in proportion to the shares he or she holds.

Income from French sources (rents and capital gains) generated by the SCPI held through a OneLife insurance policy is taxable at the corporate income tax rate in France of 33.33% (rate to be reduced to 28% in 2020, 26.5% in 2021 and 25% from 2022 onwards).

Capital gains on the sale of SCPI shares are also taxable in France at a 33.33% rate (aligned with the corporate income tax rate).

b. Organismes de Placements Collectifs Immobiliers (OPCI)

Legal framework

Organismes de Placements Collectifs Immobiliers (Undertakings for Collective Investment in Real Estate) are real estate funds which were originally created to replace SCPIs, but now coexist with them.

The purpose of OPCIs is to invest in, build, maintain and rent out real estate assets.They may also renovate the assets and resell them. In addition, the corporate purpose may include the management of financial securities and deposits.

Since the Macron Act of 2017, the French Monetary and Financial Code (CMF art L2014-34) has also allowed OPCIs to incidentally acquire furnishings, equipment and any other movable property allocated to the buildings held and necessary for their operation, use or exploitation.

There are several types of OPCIs depending on the investor’s profile, whether professional or retail, and level of risk: specialised OPCIs, OPCI umbrella funds, etc.

OPCIs aimed at professional investors (which benefits policyholders) are as follows:

– OPCIs established as a Société de Placement à Prépondérance Immobilière à Capital Variable (SPPICAV – Open-ended real estate investment companies)

– and those set up as a Fonds de Placement Immobilier (FPI – real-estate collective investment undertakings).

Both forms of OPCI have the same legal nature but their legal and tax frameworks differ.

SPPICAVs are constituted as a Société Anonyme (public limited company) or Société par Actions Simplifiée (simplified joint stock company) with variable capital. This means that the purchase of shares gives the subscriber ownership rights over the company, in proportion to the amount of his or her contribution, as well as voting rights at general shareholders’ meetings.

FPIs are not incorporated but are joint-ownerships.Investors hold units and not shares. They have no ownership interest in the FPI and have no right of control or decision-making.

Taxation

The subscription of FPI shares is exempt from registration fees and property advertising tax.

The sale, redemption or distribution of OPCI units or shares, or distribution of FPI assets are exempt from registration fees and property registration tax with two exceptions provided for in Article 730 quinquies of the CGI: holding more than 10% of the OPCI for the individual acquirer or 20% for the legal entity acquirer entails registration fees of 5%.

SPPICAVs are vehicles exempt from corporate income tax, but subject, in particular, to the obligation to distribute their profits to their shareholders.

Income distributed by a SPPICAV is considered to be financial income (dividends) and its taxation depends on the shareholder’s status (legal entity or individual) and his or her place of residence.

Under French domestic law, dividends distributed to non-resident shareholders are generally subject to French withholding tax of 30%.

If held through a OneLife policy, the tax treaty between France and Luxembourg allows this rate to be reduced to 5% for dividend-receiving companies that hold at least 25% of the distributing company’s share capital and to 15% for lesser holdings.

However, under the new tax treaty between France and Luxembourg, which should come into force on 1 January 2019, these rates are likely to change. Dividends paid by an OPCI will be subject to a reduced withholding tax of 15% when the beneficiary company directly or indirectly holds less than 10% of the share capital of the distributing company and 30% if the holding is greater than 10%.

Capital gains on the sale of SPPICAV shares are taxable in France at a withholding rate of 33.33% (aligned with the corporate income tax rate).

As for the taxation of investments made by FPIs, see the taxation applicable to SCPIs (tax transparency).

c. Les Sociétés Immobilières Règlementées (SIR)

Legal framework

The legal framework for Sociétés Immobilières Règlementées (regulated real estate investment companies) is set out in the Belgian Act of May 12, 2014, which came into force on July 16, 2014. The SIR’s purpose is in particular to “make buildings available to users, whether directly or through a company in which it has an interest, and, as the case may be and within the limits provided for this purpose, to hold other types of “real estate assets“.

This type of company has commercial and operational activities but is not obligated to act in the interests of shareholders, because the collective public interest serves as the legal rationale for this corporate structure in Belgium.

A company whose actual managers can only be individuals, the SIR covers the entire real estate sector: from holding real estate (and thus ensuring its management, urban conformity, etc.) for the long-term, with the aim of making it available to users, to the construction or renovation of real estate assets. For this purpose, the SIR must carry out its own activities without delegating any responsibility to another legal entity. This presupposes a concrete “substance” in terms of operational teams.

Incorporated as a “société anonyme” (public limited company) or a “société en commandite par actions cotée en bourse” (publicly-traded limited partnership) with at least 30% of its shares traded on the market (i.e. with publicly held voting rights), the SIR is subject to the control of the Autorité des Services et Marchés Financiers (FSMA) and to strict rules regarding conflicts of interest.

The SIR may not, however, invest more than 20% of its assets in a single property complex, as its investments must be diversified. In exceptional cases, this limitation may nevertheless be waived, subject to a reasoned opinion from the FSMA.

Taxation

The SIR is not subject to corporate income tax in Belgium under the express condition that it distributes at least 80% of its net income in the form of dividends.

Withholding tax on dividends is 30%. However, depending on the investment of the SIR concerned, a “reduced” withholding tax may apply. A case in point is the SIR investing in health care properties.

Where shares in a SIR are held through a OneLife insurance policy, the life insurance package allows the taxpayer to avoid any 30% withholding tax on income from movable property. Indeed, under the Double Taxation Treaty between Belgium and Luxembourg, the withholding tax on dividends may not exceed 10% or 15% in Belgium.

Moreover, investing in real estate through a life insurance policy allows the capital to grow by reinvesting the income received while benefiting from deferred taxation. In effect, taxation only takes place in the event of a partial or total redemption and according to the tax regime applicable to life insurance policies: the taxable capital gains on redemptions will be pro-rated according to the percentage of the capital redeemed.

Also, since 1 January 2018, assets held indirectly through a life insurance policy have been included in the taxable base for French property tax under the rules applicable to residents and non-residents.

Your professional advisor and OneLife experts are at your side to advise you on the best real estate investments to subscribe through your life insurance policy.

Onelife, it’s now, or whenever!

Authors:

Fanny PERPERE – Wealth Planner

Nicolas MILOS – Senior Wealth Planner

Jean-Nicolas GRANDHAYE – Corporate Counsel

Maximising your wealth

For High-Net-Worth Individuals (HNWI) crafting a wealth strategy can be a difficult and challenging experience, especially for those whose wealth spans borders.

Beyond requiring a favourable tax regime, these individuals need a solution that maximises and ensures the longevity of their wealth.

In Luxembourg, the assets transferred into a life assurance contract are managed according to an investment strategy which is completely customised by the individual.

In fact, Luxembourg insurance regulation allows a large range of underlying investments into internal funds. This offers investors access to a world of interesting investment opportunities.

These investments range from liquid to illiquid underlying assets, depending on the investment strategy and risk profile of the life insurance policy. They can be traditional or non-traditional – or a combination of both.

You can pursue personal investment interests, invest in mainstream assets, explore both regulated and non-regulated options … all via a life assurance policy which is tailored to you and your family’s unique needs.

To learn more about traditional and non-traditional investable assets and to read => our case study examples, visit.

Reform of the Belgian company law & the civil partnership (“société de droit commun”) …

Under the Companies Code Reform Act of 15 April 2018, civil partnership companies become simple partnerships, and new administrative and accounting obligations apply to them. Formerly praised for its discretion and simplicity, is it still viable as an essential and indispensable asset-planning tool?

1. The advantages of a life insurance corporate structure

Before setting to work enumerating the list of legislative changes made to company law for the Belgian arena, we must first situate how this code applies to the special area of asset planning.

One of the special structures mentioned in this context is certainly the civil partnership. Such a company is referred to as “a contract under which two or more persons agree to bring something into a community with the objective of carrying out one or more specifically determined activities and for the purpose of giving the partners a direct or indirect capital benefit” (i.e. distributing the benefits to the partners).[1] A civil partnership (now a simple partnership) has no legal personality, meaning that it is fiscally transparent. [2] Thus, the partners of a simple partnership are taxed directly on their share of the taxable income. Since the purpose of a simple partnership is the normal management of private assets, it is appropriate for them to not be subject to corporation tax, benefit from withholding tax, and not be taxed on capital gains or life insurance income.

There are several advantages to combining a company under ordinary law with a life insurance policy, such as avoiding income tax, avoiding the application of inheritance tax by means of prior donation, and (not least for the donor) maintaining control over the assets, all within a legal framework of discretion with respect to third parties.

2. The law of 15 April 2018… A minor reform?

The law of 15 April 2018 has profoundly changed the notion of an undertaking, for the purpose, according to the Belgian government, of achieving better uniformity and greater simplicity.[3] A company under ordinary law becomes an undertaking within the meaning of the Code on Economic Law, and is henceforth called a simple partnership.[4] This has several direct implications:

Obligation of transparency, information, and non-discrimination: now required to register with the Banque‑Carrefour des Entreprises (the Belgian register for legal entities), simple partnerships will be assigned a business number, which must be mentioned on every document they issue.[5] The simple partnership’s bank account number must also be mentioned on these documents.[6] As a direct result of this new disclosure of information, all kinds of information about simple partnerships will henceforth be publicly accessible via the Internet. This information will include, of course, the full names of the founders. Violating this registration obligation (and that of disclosure) will be punishable by a fine of up to €10,000.00.
Accounting obligation: simple partnerships are required to keep “(…) accounting books appropriate to the nature and extent of its activities (…)”. However, the accounts are simplified for simple partnerships with a turnover of less than €500,000 (amount set by Royal Decree).[7] Simple partnerships created from 1 November 2018 will be immediately subject to this obligation, and existing simple partnerships will not be subject to it until the next full financial year, starting on 1 May 2019.

At this point, it seems important to note that tax transparency and the automatic exchange of information have been gaining more and more ground every day. Under these new administrative obligations, Belgian taxpayers are now subject to a new disclosure requirement. But this disclosure is not absolute. In the current state of affairs, simple partnerships are not required to file annual accounts as determined by the Companies Code.[8] Discretion is thus always possible. But for how long?

That being said, effective asset structuring does not necessarily imply the use of a simple partnership with more complicated administration. The desired goals of exemption from income tax, avoiding inheritance tax, control and flexibility can be achieved via simple life insurance, combining foresight, civil expertise and fiscal knowledge.

For more information about this, contact OneLife’s experts.

Nicolas MILOS – Senior Wealth Planner

[1] Article 1 of the former Companies Code.

[2] Article 2 § 1 as amended by the Companies Code Reform Act of 15 April 2018, Moniteur Belge of 27 April 2018, to be taken together with Article 46 of the Companies Code.

[3] The entry into force of the provisions of this law was postponed to 1 November 2018.

[4] As proposed by Article 35 of the Companies Code Reform Act of 15 April 2018, Moniteur Belge of 27 April 2018

[5] Article 56 of the Companies Code Reform Act of 15 April 2018.

[6] Article 58 of the Companies Code Reform Act of 15 April 2018.

[7] Article III.85 of the Code on Economic Law as amended by the Companies Code Reform Act of 15 April 2018.

[8] See the new Article III.90, § 2 of the Code on Economic Law, taken together with Article 98 of the Companies Code.

Take control of your wealth

Every High-Net-Worth Individual (HNWI) has their own unique perspective on managing their wealth. But the world of wealth is not easy to navigate and there is not a ‘one size fits all’ solution. Life assurance ensures complete control and flexibility over your finances, whether this means pursuing personal investment interests to planning a sustainable wealth transfer strategy.

A life assurance contract can be tailored to the needs of the policyholder, with the various underlying investment opportunities that range from liquid to illiquid assets. These include cash, external funds, internal collective funds, alternative funds, financial holdings and equity investments into start-up businesses. A life assurance policy can structure these investments in an efficient and sustainable way, giving you access to a world of opportunity.

And this combined with the benefits of using a Luxembourg life assurance policy which provides a safe and flexible framework for your wealth. At OneLife, we realise that every client’s situation is unique. Our team of experts is on hand to advise you on the best way to maximise what is here today so that it is preserved and grows for tomorrow. What other solution can provide such a holistic approach to wealth management?

To find out more about the various types of investment opportunities, click => here and read our #Success in Investments e-Book.

Meet the García Family

María and Juan are in their sixties and reside in Latin America.

They would like to invest part of their wealth they accumulated through the years, on Real Estate investments located on the Mediterranean Coast and to make sure it benefits their family members when the time comes.

To do so, they’ve been advised to channel their Real Estate investments through a life assurance solution.

Check out our video about the wealth planning solution for the García family!

María and Juan chose OneLife as their insurer. This allows them to have a dedicated Wealth Structurer and Real Estate Experts who accompany them in the process.

The customised investment structure that the García family and OneLife agreed on is portable, tax efficient and flexible. Moreover, their personal wishes regarding succession planning will be respected.

To find out what the detailed solution for the García family is click => here !

Shaping your wealth with life assurance

Life assurance offers a gateway to a host of interesting investment opportunities through its exposure to a broad range of traditional and non-traditional assets.

Take the Leroux family. They would like to move from Northern Europe to a sunnier destination in either the Caribbean or the south of Europe. In addition, André Leroux recently sold his stake in a successful FinTech company and now wants to invest part of the proceeds in high-risk high-yield assets such as reputed Private Equity Funds. Mr Leroux was recommended to Private Equity investment as a way of diversifying his portfolio.

By taking out a unit-linked life assurance policy, the Leroux family can maximise their wealth by blending their investment interests with their relocation priorities in a personalised, structured and tax efficient way.

Moving abroad is an exciting prospect – but can be daunting too. Moving cross border can bring with it complex situations when it comes to managing wealth and thinking of providing for the future. A life assurance contract from OneLife has the advantage of taking care of the complexity, giving the peace of mind that wealth is fully compliant no matter which tax jurisdiction you choose to live in. Combined with the possibility to invest in a wide range of traditional and non-traditional assets which diversify your portfolio and minimise your risk.

To dive deeper into the benefits of using a life assurance policy to structure non-traditional investments and cross-jurisdictional wealth, check out our => e-book and our Investments Checklist = > here!

Meet the Leroux Family

Making a brave entry into the world of Private Equity investments are André and Martine Leroux, a married couple living in Northern Europe with their only child. After selling his stake in a FinTech company, André is keen to invest part of the proceeds, so exploring some non-traditional investment options is at the top of his to-do list.

With this investment opportunity, their focus is on high-risk high-yield assets which could increase significantly in value in the medium term. In their list of priorities, André and Martine are determined to create a plan which maximises their wealth in an efficient and customised way – a plan which is tax compliant across multiple jurisdictions and safeguards the future for their child.

André and Martine are keen to make the most of their capital whilst at the same time ensuring a structured, secure framework for their wealth. They want the flexibility of choosing a solution which is right for them safe in the knowledge that the next generation can benefit too from the decisions they make today. A Luxembourg life assurance policy provides that framework allowing a highly customised approach, hand in hand with security and investment flexibility. Private Equity is one of the non-traditional asset types offered by OneLife to respond to the needs of the HNW and their families.

To find out what the solution for André and Martine is, click => here !