Gift tax in out-of-court settlement
In 2007, I lent €250,000 to a Dutch foundation with a 3-year term at 10% interest. I do not know the credit rating. No collateral was offered to me. In 2009, I was offered repayment including interest totaling €322,750. Since I did not need the money at that time, I proposed to leave the money with the foundation for another 3 years (until February 2012) at 5% interest.
Regular payments have been made to me from my interest balance since 2011. After 3 years (2012), repayment was not offered to me, and I also did not request repayment. No new interest rate was agreed upon. Since May 2015, the foundation has been unable to make further payments due to financial problems, and liquidation is now looming. Real estate properties are apparently available. The foundation has proposed to me a new loan agreement (€100,000, 15-year term) + annuity contract €167,000, which are significantly less favorable with 2% interest and waiving about half of the interest balance of the original contract.
Questions: How can I ensure that the loan/annuity contract does not constitute a gift in the eyes of the tax office due to the financial situation of the foundation, and therefore no gift tax is imposed? (liquidity balance?) Who can make this determination and what costs can be expected for it?
