VCL Luxembourg flash tax news – March 2021

March 2021

Luxembourg tax authorities publish guidelines on profit-sharing bonus

Topics

  1. Introduction
  2. Conditions to be fulfilled by the employer
  3. Conditions to be fulfilled by the employee
  4. Reporting obligations
  5. Executive directors/managers and shareholders
  6. Conclusion

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On 11 February 2021, the Luxembourg Tax Authorities (LTA) published guidance (Circular L.I.R. n° 115bis/12, Circular) on the new remuneration model, the profit-sharing bonus model (“prime participative”). The new regime was introduced in Luxembourg’s 2021 budget law adopted by the Luxembourg Parliament and applies as of 1 January 2021.

We would like to share with you our insights thereof.

  1. Introduction

The introduction of the new profit-sharing bonus model was implemented under Article 115.13a of the Luxembourg income tax law (“LITL”) and follows the abolition of the stock option regime. Under this new model, employers may grant a profit-sharing bonus to some or all of their employees, based on the employer’s financial results in a tax attractive manner. Provided that all the requirements are met (as further detailed below), the profit-sharing bonus will be qualified as employment income and subject to a 50% individual income tax exemption. The profit-share premium will be tax deductible at the level of the employer as operating expenses. In addition to the Circular, the LTA published a Q&A section (available in French only) for further details on specific terms used in the Circular[1].

  1. Conditions to be fulfilled by the employer

The employer must fulfil the following conditions in order to be able to grant a profit-sharing bonus qualifying for the new model to its employees:

  • the employer must realise income that qualifies either as commercial profit, agricultural profit or profit deriving from an independent activity during the relevant fiscal year of the bonus payment;
  • the employer must hold regular accounts (comptabilité régulière) during the fiscal year in which the profit-sharing bonus is granted as well as during the previous fiscal year; and
  • the overall amount of the bonus that may be granted to the employees is limited to 5% of the employer’s profit for the fiscal year immediately preceding the year in which the premium is granted[2].

The employer to be considered for the above requirement is the one registered as such with the Luxembourg tax authorities for the relevant employee (i.e. the one mentioned on the tax card) and any company group context is excluded.

  1. Conditions to be fulfilled by the employee

The employee[3] must fulfil the following conditions in order to be able to benefit from a profit-sharing bonus:

  • the bonus may not exceed 25% of the employee’s ordinary annual remuneration (i.e. excluding cash, and/or in-kind benefits, bonuses, premiums, etc.) of the fiscal year during which the bonus is allocated. For the purpose of calculating the 25% limit, the employee’s worldwide annual salary will be taken into account irrespective of a change of the employer; and
  • the employee must be affiliated either with the Luxembourg social security system or a foreign social security system covered by a bilateral or multilateral social security agreement.

Please note that the social security contributions connected to the tax exempt profit-sharing bonus are not deductible.

  1. Reporting obligations

The Circular introduces an obligation for the employer to submit via email a detailed report as prescribed by the Luxembourg tax authorities in the form of an excel file available in French only, to the competent wage tax office (bureau d’imposition RTS). Late filing or omission of filing the form will result in the retroactive cancellation of the 50% individual income tax exemption and engage the personal liability of the employer to withhold taxes.

  1. Executive directors/managers and shareholders

Lastly, the Circular further clarifies that profit-sharing bonuses received by an executive director/manager and shareholder, who may also be the sole beneficiary of the bonus, will be considered as income derived from employment income, and which is subject to both the employer-level and employee-level conditions as outlined above.

  1. Conclusion

The clarifications provided by the circular and its underlying Q&A are very welcome and should allow companies to apply and implement the new profit-sharing bonus model without any difficulties.

The new bonus regime allows the sharing of profits among a wider population than former remuneration schemes and may help companies to attract and retain talent.

Nonetheless, as the profit-sharing bonus is limited to only 5% of the employer’s profits, it is uncertain how useful the new regime will really be in practice. As such, the new remuneration scheme seems to be more handy for larger rather than smaller companies.

Raffaele GargiuloRaffaele Gargiuolo

Partner

E: raffaele.gargiulo@vancampenliem.com

T: +352 691 205 340

Andrew de Vries

Andrew de Vries

Partner

E: andrew.devries@vancampenliem.com

T: +352 691 20 5768

Eduardo Trancho

Eduardo Trancho

Senior Associate

E: eduardo.trancho@vancampenliem.com

T: +352 691 20 5349

Gabriel Amar

Gabriel Amar

Senior Associate

E: gabriel.amar@vancampenliem.com

T: +352 691 205 709

 

Christina StrauvenChristina Strauven

Associate

E: christina.strauven@vancampenliem.com

T: +352 691 205 165

Diego Gonzalez Manso

Diego Gonzalez Manso

Associate

E: Diego.GonzalezManso@vancampenliem.com

T: +352 691 20 5080

[1]     The Q&A is available under the following link: https://impotsdirects.public.lu/dam-assets/fr/echanges-electroniques/prime-participative/FAQ-sur-prime-participative.pdf (last accessed on 29 March 2020).

[2]     Account 12 under Luxembourg GAAP.

[3]     Within the meaning of article 95 of the LITL.

Extension of the Temporary Act COVID-19 Justice and Security

March 25, 2021 – The Temporary Act COVID-19 Justice and Security (Tijdelijke wet COVID-19 Justitie en Veiligheid, the “Temporary Act“) has been effective in Dutch corporate law since March 2020, and has since then been extended multiple times. In this alert we will give you an update on the current status of the Temporary Act as well as a short summary of the changes the Temporary Act made to Dutch corporate law. For the avoidance of doubt, please note that the Temporary Act covers multiple legal areas, but we will only focus on those that impact corporate law.

Expiration and extension

As previously noted, the Temporary Act entered into force on April 24, 2020 but works retroactively from March 16, 2020. Originally the Temporary Act was supposed to expire on September 1, 2020. Due to the ongoing COVID-19 measures, the Dutch government has invoked the integrated extension clause five times over the last year (each time with an extension of two months), with the latest expiration date on June 1, 2021.

The Dutch government is aware of the fact that extending the Temporary Act with two months at a time could lead to uncertainty which makes the planning and convening of a general meeting problematic. To provide more certainty in this respect, the government therefore intends to give at least two months’ notice when provisions of the Temporary Act will not be extended again. In addition to this, the government has also already stated its intent to extend the period of validity until August 1, 2021. However, this remains subject to change.

As an exception to this, we note that the provisions on directors’ liability included in the Temporary Act, are set to expire on September 1, 2023 instead of June 1, 2021. This is related to the period for which claims based on Article 2:138/248 of the Dutch Civil Code can be submitted.

Changes to Dutch corporate law

Under the Temporary Act the following changes / additions apply to Dutch corporate law:

  1. Electronic general meetings

The management board of a legal entity can decide to make general meetings accessible through electronic means of communications only, with physical access being prohibited. Voting and speaking at the general meeting will also be conducted through electronic means of communication, whereby the management board can decide that votes may be cast by electronic means or in writing prior to the meeting. The management board has to include the measures in the convocation. If the board has already convened the meeting without including the intended measures in the convocation, the board can still take these measures until 48 hours before the start of the meeting.

The Temporary Acts gives the management board and supervisory board the power to deviate from statutory provisions and similar provisions of articles of association regarding physical meetings.

  1. Extension of drawing up annual accounts

Based on the Temporary Act the management board, instead of the general meeting, can decide to extend the period for drawing up the annual accounts up to ten months after the end of the fiscal year. However, the latter does not apply to listed companies that are subject to the Financial Supervision Act (Wft). Those companies are excluded since the extension of this period could impact their position on the market.

  1. Directors liability

If, in case of bankruptcy of an NV or a BV, the management board failed to meet the obligation to publish the annual accounts, but it can demonstrate that this was due to the outbreak of the COVID-19 pandemic, the Temporary Act states that this failure to publish will not be taken into account when determining directors’ liability.

For more information regarding the Temporary Act, we refer to our previous alert from April 22, 2020.

Should you have any questions regarding the Temporary Act and/or the impact for your business, please do not hesitate to contact us.

Martina Priekaar and Lotte Smit

Martina PriekaarLotte Smit