In Belgium, gift tax is currently only due on the donation of movable property for which the deed of donation is registered in Belgium. If one donates shares or an investment portfolio, for example, before a Dutch notary, no gift tax is due on this. The condition, however, is that the donor remains alive for three years - seven if it concerns shares of a family company - counting from the donation.
However, a recent bill permanently eliminates this well-known route to donating free of gift tax.
The reason why a donation does not give rise to gift tax before a Dutch notary is that a deed that is executed before a notary in the Netherlands is not subject to any registration requirement. Such a deed does not have to be presented to the registration office either in Belgium or in the Netherlands, so no gift tax has to be paid at the time of the donation.
Provided that the donors do not subsequently die within the first three years of the gift, the donated assets are also not subject to inheritance tax and it is therefore possible to transfer assets to the next generation free of any transitional tax.
Such a donation is only possible for the donation of movable property - such as shares and investment portfolios - and not for the donation of immovable property, since such donation deeds are already subject to mandatory registration today.
With the bill, the legislator envisages that, from now on, all deeds relating to the donation of movable property will also be subject to compulsory registration. This registration requirement would apply to all deeds of donation, regardless of whether the donation is made in full ownership or with usufruct, and regardless of the country in which the donation is made. This means that a manual donation or bank donation is still possible, since such donations can be made without the intervention of a notary.
The donation of shares and investment portfolios, on the other hand, is always required to be made by notarial deed, so that such donations could no longer be made untaxed.
It should be noted, however, that at present this is only a bill that has not yet been passed and that this obligation is therefore not yet enshrined in law. Nevertheless, it is advisable to be on the safe side and, if you were planning to make a donation before a Dutch notary, to reserve a date for the deed in advance. We will follow this up promptly and keep you informed of any developments.