The possibility of transferring the notional interest deduction (NID) that could not be deducted due to lack of (sufficient) income is abolished as from assessment year 2013.
A transitional provision provides that the NID stock that exists on December 31, 2011 or at the end of the taxable period associated with 2012 (i.e. by 30 December 2012) will remain transferrable and deductible from the profits of the 7 subsequent taxable periods. The deductible amount for each tax year is however limited: if the taxable benefit exceeds 1 million €, the deductible amount above that first million is limited to 60%. The amounts that are not deducted because of this restriction will be deductible from the profits of the following periods, even after the originally foreseen seven years. The deduction of notional interest deduction will also become the last operation for the calculation of the taxable base for corporate income tax.
These measures will apply from assessment year 2013. The law contains an anti-abuse provision on the enactment of these measures. This provision provides that any amendment made as from 28 November 2011 to the closing date of the financial year have no effect on their application.
A similar anti-abuse measure is also inserted as regards the maximum rate of the notional interest deduction of 3% that was introduced by the law of 28 December 2011 containing various provisions.
The BITC 1992 is adjusted so that the situation in which the recipient of the benefit of a company car partially intervenes in the cost of the vehicle also falls within the scope of the new disallowed expenses (17% of the benefit in kind company car). Similar changes are made to the legal entity tax and non-resident (corporate) income tax.
No investment deduction is normally granted for fixed assets where the right of use is transferred to a third party (outside situations such as leasing or leasehold where the right to depreciate the fixed assets lies with the third party). The Constitutional Court has held that if it is justified to exclude an SME from the deduction if it transferred the right of use of the fixed asset to a company which could not benefit from the investment itself (because it does not meet the conditions, criteria and restrictions to the deduction), it is however not justified when the company that enjoys the transferred right of use can claim the benefit of the investment deduction.
The measure is thus adjusted so that the transfer of the right of use of the fixed asset does not exclude the benefit of the investment deduction if the transferee fulfills the conditions to enjoy it.
The measure will apply from assessment year 2013 to the extent the assets are acquired or established from 1 January 2013.