A founder sees enough cash in the operating BV for a private payment. The holding owns the operating company, the founder owns the holding, and one person controls every bank account. Sending the money directly can feel like harmless efficiency.
Gerechtshof Den Haag showed the cost of that shortcut in ECLI:NL:GHDHA:2026:2169, issued on 30 June 2026. An operating BV paid €116,324 directly to its director-major shareholder, or DGA. The holding company, however, held the shareholder entitlement to the distribution.
The court treated the route as a concealed distribution by the holding to the DGA. It upheld the additional 2019 income-tax assessment relating to a regular substantial-interest benefit. Work carried out in 2023 did not change what had occurred four years earlier.
One person, three legal actors
The tension is familiar. A founder may experience the operating BV, holding BV and private household as parts of one economic life. Dutch company and tax rules treat them as separate actors. Each company owns its cash, records its decisions and carries its own duties.
That distinction explains why founders use holding structures. They separate trading activity, accumulated reserves, investments and personal ownership. The separation must also survive contact with the bank account. When payment practice bypasses the structure, the structure loses part of its practical protection.
In this case, the operating company distributed the amount to its shareholder, the holding. The holding then allowed the money to reach its own shareholder directly. The court considered the benefit to the shareholder, the parties' awareness and the available profit or reserves alongside the bank route.
For small groups, this is a governance lesson. One person may chair the meeting, sign the minutes, approve the transfer and later sign the tax return. With no independent colleague at the table, the file itself must provide the discipline.
Agio is not a payment label
The founder argued that the payment represented a tax-free return from the agio reserve. That word can create false comfort. Agio is paid-in capital recorded in equity, but an agio balance does not itself determine the tax character of cash sent to a shareholder.
For the income-tax exception in Article 4.13 of the Wet inkomstenbelasting 2001, the return must remain within the relevant acquisition price. The general meeting must decide on the repayment before it occurs. The nominal value of the issued shares must also be reduced by the same amount through an amendment to the articles.
These steps define the payment at the moment it takes place. They are part of the transaction, not paperwork for after the transfer. The court found that the required steps had not been completed at holding level before the 2019 payment.
Dividend tax and the DGA's personal box 2 position require their own attention. The resolution, equity history, payment instruction, dividend-tax return, ledger entries and personal return should describe the same transaction. A conclusion about dividend tax does not settle the separate income-tax question.
The calendar does not negotiate
The judgment is especially useful in its treatment of the later repair. In 2023, steps were taken to recast the earlier payment as an untaxed capital return. The court placed those steps in the wrong year and at the wrong company level. The 2019 benefit remained where it was.
That sequence will be familiar to anyone who has closed a set of accounts. A bookkeeper receives the bank statements weeks later. The accountant raises a question during year-end work. Minutes are drafted to support the intended treatment. The ledger starts to look cleaner, while the original cash movement remains clear.
Tax years have boundaries. Once cash, entitlement, decisions and conduct establish a shareholder benefit in one year, later entries may improve the books without moving the original tax moment. A correction may still matter, but it starts with an honest reconstruction of what happened.
Return to the founder who wants the money on Friday afternoon. The useful pause is short: who is distributing, who is entitled to receive, which decisions are already effective and how will the payment appear in every relevant return?
Before the money leaves
A small BV group can build this discipline without turning each payment into a legal ceremony. The founder, accountant and tax adviser can agree the route before releasing the cash. The bank account should follow that route, with the supporting decisions and tax treatment ready at the same time.
It is also worth reviewing direct shareholder payments from the current and previous financial year. Private withdrawals, dividends, shareholder-loan movements and proposed capital returns deserve particular attention. Where the company named in the resolution differs from the company shown on the bank statement, the sequence needs a clear explanation before anyone gives it a convenient label.
This is not a lesson in slowing down every distribution. It is a lesson in keeping control when cash moves quickly. An operating BV, holding BV and shareholder may sit under one founder, but they remain distinct legal and tax actors.
Cash can cross a group in seconds. The legal entitlement, corporate decision, ledger and tax return move more slowly. Good ownership discipline brings them together before anyone presses send.
Unsure whether a planned or past BV payment follows the right route? We can review the file with you
The data, sourcing, and analysis behind this article were conducted by Paolo Maria Pavan. AI was not used to identify sources, build the factual basis, or produce the analytical judgment contained here. AI was used only as a drafting aid. The final English text was personally reviewed, edited, and approved by Paolo Maria Pavan before publication.
References
- Verkapte uitdeling in 2019 belast, herstel faalt in 2023 - Taxence
- Rechtspraak - Concealed distribution through a holding structure
- Belastingdienst, Kennisgroepen - Formal conditions for a return of capital and agio
- Belastingdienst - Current classification of regular substantial-interest benefits
- Belastingdienst - The tax year and the moment of payment
- Wettenbank
- Belastingdienst
