Closed-end private equity funds, submitted to the Royal Decree of 10 July 2016 on alternative institutions for collective investment in unlisted and growth companies, are an investment instrument designed to offer individual investors a suitable framework in which to invest in unlisted and growth undertakings.
A closed-end private equity fund is a closed undertaking for collective investment (UCI) which is under the supervision of the Financial Services and Market Authority (FSMA) and subject to specific investment rules and obligations as regards the distribution of dividends.
- 25% or more of the portfolio must be invested in unlisted companies;
- 70% or more of the portfolio (qualified investments) must be invested in:
- unlisted companies
- listed growth companies with a market capitalisation of less than 1.5 billion euros;
- AIF's with an investment policy similar to that of the private equity fund
A private equity fund may not invest more than 20% of its portfolio in a single undertaking.
The private equity fund enjoys considerable tax benefits. These benefits only apply if the investment rules are adhered to and:
- all the portfolio companies are subject to a normal taxation scheme;
- at least 80% of realised profits from the financial year are distributed as dividends (Quest for Growth’s articles of association specify that it will distribute at least 90% of the realised profits);
- provided there are sums available for distribution.
Provided the private equity fund adheres to these investment rules, the tax base is limited to abnormal and gratuitous benefits received and disallowed expenses with the exception of impairment and losses on shares.
Tax liability of Belgian private individuals and companies subject to legal entities tax
No withholding tax is due on that part of the dividend deriving from capital gains realised on shares by the private equity fund. The remainder of the dividend is subject to withholding tax at a rate of 30%. The withholding tax is a final tax charge.
Capital gains on shares
Private, non-professional individuals are in principle not taxed on the capital gains they realise when selling their shares in the private equity fund.
Tax liability of Belgian investors subject to corporation tax
No withholding tax is due on that part of the dividend deriving from capital gains realised on shares by the private equity fund. The remainder of the dividend is subject to withholding tax at a rate of 30%.
Distributed dividends are eligible for deduction as definitively-taxed income (DTI – DBI in Dutch; RDT in French). There is neither a qualifying holding threshold nor a holding period requirement to claim the DTI deduction. Furthermore, the holding in the private equity fund need not be recorded as financial assets in the taxpayer’s accounts to be eligible for the DTI deduction.
The dividends distributed by the private equity fund only qualify for the DTI deduction in so far as they derive from dividends or from capital gains qualifying for exemption (which are exempt gains on shares and gains that are taxed at 0.412%). Income from dividends conferring no right of deduction or that do not relate to gains on shares that qualify for exemption are subject to corporation tax at a rate of 33.99% or the reduced incremental rate (as the case may be).
Capital gains on shares
Gains realised by the PRIVAK/PRICAF on shares are in principle subject to corporation tax at the standard rate of 33.99% in the hands of the investing Belgian companies. Losses on shares of the PRIVAK/PRICAF are not deductible as a rule.