Family tax exemption does not apply to the acquisition of immovable property through a private limited company

Case

In the present case, a natural person (‘the father’) indirectly held all the shares in a private limited company (‘B BV’) until 1 April 2014; this company operated two hotels and owned the hotel premises. On the abovementioned date, X BV (‘the interested party’) took over the hotel business, with the exception of the hotel premises. The shares in the interested party were in the form of depositary receipts, with the father indirectly holding 10 per cent and his two sons – also indirectly – 45 per cent each. In 2019, this interest was redistributed and the interested party acquired all the shares in B BV, which at that time qualified as a legal entity for property tax purposes.

The dispute is about whether this acquisition qualifies for the family tax exemption (familievrijstelling) under Article 15(1)(b) of the Legal Transactions (Taxation) Act (Wet op belastingen van rechtsverkeer, Wet BRV). The interested party argued that, in substance, this constitutes a transfer within the family from the father to his children. The Tax Inspector refused to apply the exemption and imposed an additional assessment, on the grounds that there was no direct acquisition of shares from a parent by his children.  

Court of Appeal’s ruling

The Court of Appeal in Den Bosch ruled that the exemption does not apply in this case, as the statutory requirement that the acquisition must be made by the children of an entrepreneur has not been met. The Court considered it significant that the shares in the property company were acquired by the interested party and not by the sons, and that the alienation was not effected by the father, but by an intermediate private limited company.

The Court of Appeal rejected the interested party’s reliance on the look-through judgments, arguing that these judgments do not provide grounds for disregarding the legal entities concerned, so that the legal structure remains decisive for the application of the exemption. The interested party lodged an appeal in cassation against this judgment.

Look-through judgments have no effect

The Supreme Court first of all stated that it is clear from the wording and scope of Article 15(1)(b) of the Legal Transactions (Taxation) Act that the family tax exemption is intended for transfers by an entrepreneur to their (grand)children and their spouses. The family tax exemption therefore relates to transactions between natural persons. This condition is not met in a situation where the acquisition takes place through a private limited company.

The Supreme Court then ruled that the reliance on the look-through judgments was invalid. Even in the event of a direct acquisition of the immovable property by the interested party from B BV, the conditions for the exemption would not be met and, accordingly, the look-through judgments cannot lead to application of the exemption. The look-through judgments do not provide grounds for disregarding the identity of the transferor and the transferee but relate solely to the object acquired.

The Supreme Court further emphasised that the Legal Transactions (Taxation) Act is, in principle, linked to the civil law form of legal acts. Tax transparency for legal entities is only possible if and to the extent that the legislature provides for it and determines the conditions therefor. In doing so, the Supreme Court confirmed that the look-through approach cannot be applied in a general sense. The Supreme Court declared the appeal in cassation unfounded and the additional transfer tax assessment was upheld.  

Source:

• Supreme Court, 10 April 2026, 25/00045, ECLI:NL:HR:2026:568