On June 6, 2024 the Supreme Court ruled that if the taxpayer can demonstrate a lower actual return (income and realized plus unrealized capital gains) than the deemed return based on the law, the tax should be charged on this lower actual return.
We often receive the question if it is possible for one fiscal partner to opt for the deemed return and the other for the actual return.
Our view is that the Supreme Court wants to adhere as much as possible to the legal system of Box 3. In the case of fiscal partners, a joint return with joint Box 3 assets is to be filed. These assets may deemed return in Box 3. In the first case you opt for the joint deemed return, in the second case you opt for the lower actual return. This system means that partners should always make the same choice.
Perhaps it is possible in case of a choice for the lower actual return, that partner A chooses to report this actual return on the assets allocated to him/her whereby and partner B chooses to utilize the deemed return and therefore tax-free amount in Box 3. If one then ensures an allocation in such a way that exactly the tax-free capital is used for B (€ 57,000 in 2024), the Box 3 taxation for B on the actual return has been saved. Please let us know if our tax compliance department can assist you in calculating the best alternative in your case.