The Zeeland-West-Brabant District Court rules that the acquisition of economic ownership of a private home is subject to 8% transfer tax.
The case (17 August 2023, ECLI:NL:RBZWB:2023:5805) proceeds as follows. On December 17, 2021, a woman acquired 80% of the economic ownership of a home from a housing association. The remaining 20% economic ownership and legal ownership of the home remain in the hands of the housing association. The woman rents the remaining 20% beneficial ownership from the housing association.
In connection with the acquisition of economic ownership, 8% transfer tax is due. The woman does not agree with this and submits the case to the judge.
The judge rules that the woman is not entitled to the housing rate in connection with the acquisition of economic ownership of the home. From art. Article 14(5) of the WBR explicitly states that the acquisition of beneficial ownership is subject to 8% transfer tax. The appeal is therefore unfounded and the inspector is therefore right.
Importance for practice
In our opinion, the outcome is not surprising, the law leaves nothing to be desired in terms of clarity. In practice, however, it does happen that economic ownership of a home is acquired before legal ownership. For example, if a buyer receives the property before acquiring legal ownership by means of a so-called key declaration. The buyer thus acquires economic ownership of the home.
From art. 14 paragraph 5 and art. 15 paragraph 8 WBR follows that the reduced rate and the starter exemption do not apply, so that the regular rate of 10.4% (2023) applies to this acquisition.
The State Secretary does not consider it desirable that more transfer tax is due when acquiring economic ownership in anticipation of the acquisition of legal ownership than in the situation where legal and economic ownership are acquired simultaneously. In the (amended) Transfer Tax Decree of 2 March 2023, no. 2023-2, Stcrt. 2023, 5423, he conditionally approves that if a buyer acquires economic ownership in anticipation of acquiring legal ownership, the reduced rate or the starter exemption applies.
Source: Legal & Tax Nationale Nederlanden
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