Capital gains tax: what the new circular clarifies

Contribution of financial assets to a partnership

The partnership is a widely used structure in family wealth planning and business succession planning. Until recently, there was uncertainty as to whether contributing financial assets to a partnership could trigger the new capital gains tax.

The circular now clarifies when such a contribution does, or does not, constitute a taxable event.

Contribution of identical assets

The mere contribution of identical financial assets, such as shares in a family-owned company, to a partnership acting as a control vehicle is not considered the realization of a capital gain. Consequently, no capital gains tax is due at the time of the contribution.

Entry into or withdrawal from joint ownership

Similarly, contributing financial assets to joint ownership, or subsequently withdrawing them from such joint ownership, does not in principle trigger taxation, provided that no implicit exchange of financial assets takes place.

However, if the admission of a new co-owner or the division of jointly owned assets results in an implicit exchange of one financial asset for another, a partial transfer is deemed to occur and may become taxable.

Greater clarity on internal capital gains

So-called internal capital gains are subject to an increased tax rate of 33%, instead of the standard rate of 10%. This regime applies when shares are sold to a company over which the seller continues to exercise direct or indirect control.

Because this concept raised numerous questions in the context of restructurings and acquisitions, the circular further clarifies its scope.

Control factor remains decisive

An internal capital gain only exists where the selling shar eholder, either individually or together with close family members, exercises control over the acquiring company or holding company.

Sale to an investment fund

Where a founder sells shares to an investment fund that acquires a majority stake, while the founder reinvests only through a minority interest in the parent structure, the transaction does not fall within the scope of the 33% tax rate.

Management Buy-Out (MBO)

Likewise, in a Management Buy-Out (MBO), the internal capital gains regime does not apply where management acquires the majority of the shares in the acquisition vehicle and the seller retains or acquires no more than a minority interest.

Family Business Succession

The circular also explicitly confirms that the internal capital gains regime does not apply where parents transfer their shares to their children, or to their children's holding companies, as part of a family succession plan.

Crypto-Assets Are Not Automatically Considered Speculative

Many cryptocurrency investors feared that realized gains would automatically be classified as speculative or as resulting from abnormal management of private assets, thereby triggering the 33% tax rate.

The circular makes it clear that this is not automatically the case.

In assessing whether transactions are speculative, the tax authorities consider several factors, including:

• the proportion of crypto-assets within the taxpayer's total financial wealth;

• whether loans or other forms of financing were used to acquire the crypto-assets;

• the use of trading bots or automated trading software.

None of these factors alone is sufficient to conclude that speculative activity exists. Only a combination of several aggravating factors may lead to the classification of speculative asset management.

For the average investor, this means that realized capital gains on crypto-assets remain taxable, in principle, at the ordinary 10% rate.

What If You Cannot Prove the Acquisition Value?

The law provides that where the original acquisition value of a financial asset cannot be demonstrated, it is deemed to be zero. As a result, the entire sale price would become taxable.

The circular introduces an important qualification to this rule.

The Zero-Value Presumption Is an Exceptional Measure

According to the tax authorities, this rule should only be applied as an ultimum remedium (last resort) and is primarily intended for financial assets acquired after 31 December 2025.

Assets Held Before 1 January 2026

If you can demonstrate, using the usual means of proof (excluding an oath), that you already owned the financial asset before 1 January 2026, you may rely on its valuation at the reference date of 31 December 2025.

In that case, the absence of evidence of the original purchase price prior to that date does not present a problem.

Additional Clarifications Regarding the Reference Date of 31 December 2025

The circular also provides further practical guidance concerning the reference date.

An appendix includes an overview of the reference values for gold and gold coins in various currencies.

In addition, the tax authorities confirm that taxpayers holding investment portfolios denominated in foreign currencies may rely on the last closing exchange rate on 31 December 2025 as applied by their own financial institution.