FURTHER EXPLANATION · 2 MIN READ
What was assessed in advance?
On 12 October 2026, the Flemish Tax Administration published advance decision VB 26056, made on 27 July 2026. In the family case described, the parties wanted to undo a 2021 gift by mutual consent. A new gift would then follow with amended conditions and a remainder gift for the next generation. An advance decision binds the administration only within the facts presented and is therefore not a general rule for every restructuring of a gift.
In this case, VLABEL accepted that the return to the original donor was not subject to gift tax. The decisive point was that the return was not itself a gift: according to the application, there was no intention to give. This must be demonstrated by the legal form, the parties’ true intention and the coherence of all steps. Merely using the word rescission or return is not enough.
Why is the new gift separate?
The immediate new transfer was assessed as a new gift. The recipient received the assets again, but under different charges and conditions. This creates a new tax point. Whether an exemption can apply then depends on the statutory conditions and evidence. VLABEL could not finally confirm that point without all required documents.
The decision also considered a fideicommissum de residuo, often called a remainder gift. The first recipient may dispose of the gifted assets, while whatever remains at that person’s death passes to a second recipient. According to the decision, that transfer becomes current only when the first recipient dies. Acceptance, family relationship and the value of the remaining assets then become relevant for tax purposes.
A recognisable example
Suppose a parent previously gifted securities and the family later wants greater protection for the first recipient and clearer arrangements for the grandchildren. A simple addendum to the earlier deed may be insufficient. The return, the new transfer and the destination of any balance each have their own legal function and must be proven accordingly.
Wat kan Notariaat Wellens doen?
Notariaat Wellens can read the original gift deed together with all later arrangements, document the non-donative reason for any return and draft the new conditions precisely. The office can also identify the evidence, valuations, registrations and acceptances that are required.
Discuss the full sequence before anyone signs or returns assets. This allows the return, new gift and remainder gift to fit together legally, while keeping the tax assessment for each separate step clear.