By the time all parties involved in an acquisition have (nearly) decided on the deal, an inventory will be made of the capacity in which parties will participate, as a private person or through a private limited company.
Agreements have also been made as to whether the (new) shareholders will mainly deploy their manpower or whether their merit lies mainly in making risk capital available. This is usually the time to consider whether management will have a "stake" in the acquisition holding company.
Quite a few birds of a feather. We will therefore briefly go through the main tax requirements of the various participants. I assume that the shares in the acquisition BV are bought by an acquisition holding company and that only Dutch parties are involved.
Participants through a BV
These parties will want to ensure that they own at least 5% of the nominal paid-up capital of the acquisition holding company. This is because in that case they can receive dividends untaxed and the gain on the shares will in principle be untaxed.
Private participants
The opposite is almost true for private participants. From a tax point of view, if their interest is less than 5%, they are in principle not taxed for dividends received and increases in value. However, the value must be declared in Box 3, but this is generally considered a very attractive tax option. The question is how long this will remain the case, now that Box 3 is expected to have had its day and legislative changes have been announced. Big question is what will take its place (and what the transitional law will be).
If the interest is 5% or higher, we call it a "substantial interest" for tax purposes. There are various extensions of the concept of substantial interest; for example, you already have a substantial interest if you have a substantial interest in a certain type of shares. If there are shares that belong to a substantial interest, then dividends and gains on those shares are taxed at 26.9%. So it is quite possible for a private person that 4.9% of the shares will net more for him/her than 6% (the 4.9% is basically untaxed and from the 6%, 26.9% (2022) of the profits will be taxed).
Management
The problem for participating management is that they do not always have the financial capacity to take a serious interest, even though they are important for the success of the acquisition. For this reason, shares are often created that yield a relatively high profit share but are not as expensive.
The tax authorities have a more than average interest in these types of shares. First, they look at the price at which those shares are made available to management. In addition, they consider whether the shares might qualify as a so-called "lucrative interest. In both cases, taxation follows in Box 1 (top rate 49.5%). If the management's interest is placed in a separate holding company, under certain conditions the lucrative interest tax rate can be reduced to 26.9%.
Summary
Different tax rules and possibilities apply to the various possible participants in an acquisition holding company. The trick is to take all the different interests into account as much as possible when structuring the setup.
