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Tax

i Personal income taxGeneral

Belgian resident individuals are subject to Belgian personal income tax (PIT) on their worldwide income, while non-residents are generally only subject to (non-resident) PIT on their Belgian-sourced income. In both cases, Belgian taxation is subject to the provisions of the applicable double tax treaties.

A person is resident in Belgium if he or she has his or her domicile in Belgium. A person without domicile in Belgium can still qualify as resident if his or her 'seat of wealth' is established in Belgium.

The term 'domicile' refers to one's place of main and permanent abode. This is a factual test. There is no clear black and white test, such as day-counting. Listing in the National Register of Individuals creates a (rebuttable) legal presumption regarding residency, and a married person is irrefutably presumed to reside with his or her family. 'Seat of wealth' refers to the place from which individuals administer their wealth, regardless of its location.

There are four categories of income: professional income, real estate income, investment income and miscellaneous income.

Professional income is generally subject to the progressive tax rates (up to 50 per cent) and tax is to a certain extent levied at source (withholding tax).

Real estate income is generally taxable at the progressive rates. The taxable base of real estate income is generally much lower than the actual rental value, except in cases of rental for professional use. Capital gains on privately held immovable property are generally not taxable as real estate income. However, in certain cases, such gain can qualify as miscellaneous income taxable at a flat rate.

For investment income (dividends including liquidation proceeds, interests and royalties), the default tax rate for interest and dividend income is 30 per cent, although exceptions apply. For example, dividends from qualifying small or medium-sized companies can be subject to a reduced tax rate of 20 per cent or even 15 per cent. Also, such companies can annually allocate their profits to a 'liquidation reserve', which can be distributed later at reduced tax rates. The application of the reduced tax rates is subject to certain conditions.

A reduction of capital must be allocated for tax purposes pro rata to the taxable reserves of the company making the repayment. The part of the capital allocated to these reserves will be taxed as a dividend.

For certain investment insurance products, a tax-exempt yield can be realised in both type 21 (capital and yield guaranteed) and type 23 products (no guarantee as to capital or yield). Individual life insurance contracts are generally subject to a premium tax.

The tax on investment income must generally be withheld at source by the Belgian paying agent. In that case, the income must not be reported in the annual PIT return. If no withholding tax is levied (for example in case of a foreign paying agent), the income must be declared in the annual PIT return, and a tax equal to the withholding tax will be levied.

Unless taxable as miscellaneous income (see below), capital gains realised on movable assets do not generally constitute taxable investment income. However, capital gains on shares of units of capitalising collective investment funds may be taxed at 30 per cent if more than 10 per cent of the assets are invested in debt securities. The same regime applies to shares redemptions or liquidations by such investment companies.

Royalties are taxable at 30 per cent. For copyright royalties, a reduced rate of 15 per cent can apply subject to certain conditions.

Miscellaneous income is taxed separately at flat tax rates. Among the most important categories of miscellaneous income are:

  1. occasional and speculative (non-professional) profits and proceeds, including capital gains on shares realised as a result of an abnormal management of private wealth (33 per cent);
  2. capital gains realised on the transfer of a substantial shareholding (25 per cent or greater) in a Belgian company to non-EEA legal entity (16.5 per cent); and
  3. capital gains on the sale of Belgian real estate (other than the family dwelling) within eight or five years after acquisition (16.5 per cent or 33 per cent).
Cayman taxGeneral

In 2013 a reporting obligation for Belgian residents involved with or receiving an advantage of 'legal arrangements' has been introduced. In 2015 a 'look-through' tax pertaining to such legal arrangements has been introduced in Belgian PIT. This tax is commonly referred to as the 'Cayman tax'.

Managing the impact of the Cayman tax is of paramount importance for high-net-worth individuals residing or intending to reside in Belgium.

Despite its recent introduction, the Cayman tax has already been subject to numerous changes, sometimes with retro-active effect. The cause is the extremely poor quality of the Cayman tax legislation combined with a lack of overall vision and an overzealous legislator keen on closing a loophole as soon as it pops up in legal doctrine or the press.

In its most recent incarnation, one of its original key elements, the look-through approach, was largely abandoned. It is now only applied with respect to founders and only insofar as the legal arrangement has not distributed the relevant income to the founder or another person before the end of relevant taxable period. If no such distribution occurs, the income of the legal arrangement keeps its original qualification and is taxed accordingly in the hands of the Belgian resident.

On the other hand, in the case of a distribution by a legal arrangement, the income will now, in principle, always be qualified as a taxable dividend irrespective of whether the distribution is made to the founder of or to another person. A qualification as a taxable dividend can then essentially only be avoided if the distribution brings the capital of the legal arrangement below the capital that has been contributed to it by the founder or if the income that is distributed has already been subject to the Cayman tax (for example under the look-through rule). The law is written in such a way that these exceptions can only be invoked once all pre-Cayman tax reserves have been distributed and taxed in Belgium.

Moreover, the law now also provides for some deemed dividend distributions. These can, for example, be triggered in the case of transfer of assets (including transfer of seat) or a contribution involving legal arrangements.

Several special anti-abuse rules apply, rendering the Cayman Tax even more complex. The law now provides that a legal arrangement – an entity that is in principle not a Belgian entity or taxpayer – can commit tax abuse that can then seemingly be attributed to a Belgian resident founder.

Legal arrangements

There are three types of legal arrangements:

Type 1

Trusts and other fiduciary arrangements without legal personality (eg, trusts), this irrespective of whether they are taxable or not (in their home jurisdiction).

Type 2

Foreign entities with legal personality that are not subject to income tax in their home jurisdiction or for which the effective (corporate) income tax rate in their home jurisdiction (computed according to the Belgian tax rules) is lower than 15 per cent. By way of exception, and subject to certain conditions, certain entities do not qualify as legal arrangements (or can be taken out of scope of the Cayman tax). These include companies running an operational business (economic activity test), genuine public or institutional undertakings for collective investment in transferable securities and alternative investment funds and entities listed on a qualifying stock exchange.

A distinction must be made between legal entities inside and outside the European Economic Area (EEA).

EEA entities

Originally, EEA entities were largely out of scope of the Cayman tax. They only qualified as legal arrangements if they were specifically blacklisted in limitative a Royal Decree (EEA Decree).

Initially the EEA Decree was a closed list containing only the Luxembourg Société de Gestion de Patrimoine Familial, the Luxembourg Fondation (which does not even exist), and the Liechtenstein Anstalt and Stiftung.

The amendment of the EEA Decree at the end of 2018 (but with retroactive effect as from 1 January 2018) led to a paradigm shift. Henceforth, every EEA entity is a legal arrangement provided it falls in one of the three following open-ended categories:

  1. Investment funds in the EER, when they are held by one or more persons, are connected with one another. If the fund is compartmentalised, this is to be assessed per compartment. This implies that, for example, a Luxembourg Sicav dédiée (a dedicated investment company with variable capital) or a Luxembourg Sicav-SIF (a Sicav with specialised investment fund status) (or their compartments) can potentially come within the scope of the Cayman tax.
  2. Hybrids: these are companies that – despite having a separate legal personality – are treated as tax-transparent under local tax law while they are not treated as tax transparent under Belgian tax law. Two exceptions apply. The first excludes companies that have as their main purpose the generation of a type of income that would be tax-exempt in Belgium under a double taxation convention if a Belgian resident individual would receive such type of income directly (treaty exception). The second excludes companies when, under local law, their income is subject to income tax in the hands of the Belgian resident shareholder or partner, and if this income tax amounts to minimum of 1 per cent of the part of the taxable that can be allocated to said partner or shareholder and is determined in accordance with Belgian rules.
  3. All companies and legal entities that are not taxed or are subject to income tax that amounts to less than 1 per cent of the taxable income determined according to the Belgian rules of the legal arrangement.

This new EEA Decree gives rise to a lot of uncertainty because its potential scope is very wide. By way of example, a normally taxed corporation such as a Luxembourg Soparfi can, in certain circumstances, also qualify as legal arrangement.

It can be questioned whether the EEA Decree is compliant with double taxation conventions and EU law. However, the exact way these interact with the Cayman tax is to a certain extent still unclear.

Non-EEA entities

Initially, a Royal Decree was issued that contained a non-limitative list of entities that were presumed (subject to proof to the contrary) to qualify as a legal arrangement (non-EEA Decree).

In 2019, the non-EEA Decree has been amended. Investment funds outside the EEA are now specifically qualified as legal arrangements, under conditions that are mutatis mutandis, the same as those that are provided for in the EEA Decree. A definition of hybrids was included; however, the two exceptions that were included in the EEA Decree have not been inserted in the non-EEA Decree.

Type 3

A third type of legal arrangement aims at insurance wrappers used in certain avoidance schemes.

Chain construction

The Cayman tax also includes the notion of a 'chain construction'. A chain construction is deemed to exist when a parent legal arrangement holds shares or economic rights in an underlying legal arrangement. Such an underlying legal arrangement can itself be a parent legal arrangement of a lower tier legal arrangement in which it holds shares or economic rights. This way it is possible to form a chain of legal arrangements whereby the income of an underlying legal arrangement is attributed to its parent legal arrangement prorate the shares or economic rights the latter holds in such a lower tier legal arrangement. This income is then attributed upwards to the founder of the (ultimate) parent legal arrangement.

Rules are in place to avoid double taxation if income that has already been attributed in such a way to the founder is later taxed again when it is distributed up the chain to (ultimately) the founder. But again, the applicable allocation rules have been drafted in such a way that they are to the disadvantage of the taxpayer.

ii Inheritance tax and gift tax

Inheritance tax (IHT) and gift tax are both regional taxes. Rules in the Brussels, Walloon and Flemish regions may therefore vary.

Inheritance tax

Upon the death of a person that has his or her domicile in Belgium, IHT is due by the heirs on the net value of the worldwide assets of the deceased.

The criteria to determine residency for PIT purposes also apply to determine whether a person is resident in Belgium for IHT purposes. The citizenship of the deceased and the residence and the citizenship of the heirs are irrelevant for inheritance tax purposes. What region the deceased was resident in will subsequently be determined by analysing in which region the deceased lived the longest in the five years prior to his or her death.

Subject to certain conditions and within certain limits, foreign inheritance tax on immovable property can be offset against Belgian inheritance tax. Belgium has only concluded bilateral inheritance tax agreements with Sweden and France. Since Sweden has abolished inheritance tax, only the agreement with France may have an impact on cross-border inheritance taxation issues between France and Belgium. For non-residents, IHT is only due on their Belgian real estate. For EEA residents, IHT is due on the net value; for non-EEA residents, IHT is due on the gross value of the Belgian real estate.

As IHT is regional, the tax rates, tax computation and exemptions vary for the three regions. Except when flat rates apply, rates are double progressive and depend upon the kinship between the deceased and the heir, and upon the value of the assets. Direct line heirs and spouses (and under certain conditions cohabitant partners) are taxed at rates of up to 27 per cent (Flemish Region) or 30 per cent (Brussels Capital Region or Walloon Region). The highest rates (for non-related beneficiaries) go up to 55 per cent (Flemish Region) or 80 per cent (Brussels Capital Region or Walloon Region).

Family homes (when bequeathed to the surviving spouse or cohabitant partner) and family businesses can benefit from favourable tax rates in all three regions, although the conditions differ from region to region.

Reduced flat tax rates apply to public bodies and charitable institutions (including private and public foundations), among others: 8.5 per cent (Flemish Region), 12.5 per cent or 25 per cent (Brussels Capital Region) and 7 per cent (Walloon Region).

IHT legislation provides for 'fictitious legacies' increasing the taxable base, as well as an anti-abuse provision to counter illegitimate tax avoidance.

Since 2015, the Flemish tax authorities collect the Flemish IHT (whereas the Federal Tax Authorities still collect Brussels and Walloon Region IHT). The Flemish tax authorities frequently take controversial positions that affect 'classic' estate planning strategies and create uncertainty.

Gift tax

Belgian gift tax is only due upon registration of a document or deed in Belgium. Such registration is compulsory for Belgian notarial deeds in general, particularly for transfers of Belgian real estate. Movable assets (cash, stock, bonds, classic cars, art, etc.) can be gifted without intervention by a Belgian notary, and thus avoid registration. Under certain conditions, such gifts can also avoid the levying of gift tax but will generally require that the donor survives the gift for at least three years in order to also avoid the levying of inheritance tax.

The regions have different rates for gifts of immovable property and of movable assets. The latter can generally benefit from low flat rates (ranging from 3 per cent to 7 per cent). Notwithstanding important regional reductions over the past couple of years, immovable gifts are still more expensive, as tax rates are progressive and can go up to 27 per cent (Flanders and Brussels Region) and 30 per cent (Walloon Region) for spouses and (grand)children, and up to 40 per cent (Flanders and Brussels Regions) or 50 per cent (Walloon Region) for non-related beneficiaries. It is expected that the Walloon Region will align the immovable gift tax rates with the aforementioned Flemish and Brussels rates.

Family businesses can benefit from favourable tax rates (ranging from 0 per cent to 7 per cent) in all three regions. Flat rates or exemptions are also available for charitable gifts (eg, to private or public foundations).

iii Other taxesWealth tax

There is no general wealth tax in Belgium. However, as of 1 January 2018, residents and non-residents are subject to a 0.15 per cent tax on securities accounts (TSA) if the average annual value of the in-scope securities exceeds €500,000 (per account holder, irrespective of the number of financial institutions involved). For Belgian residents, TSA applies to securities accounts with Belgian or foreign financial institutions. For non-resident individuals, TSA only applies to securities accounts maintained with Belgian financial institutions. Anti-avoidance rules are in place.

Stock exchange tax

The scope of the Belgian stock exchange tax (TOB) was extended on 1 January 2017 and now also covers transactions executed by Belgian residents (individuals and entities) through non-Belgian financial intermediaries. The TOB currently amounts to 0.12 per cent (on bonds, capped at €1,300 per transaction), 0.35 per cent (on stocks, capped at €1,600 per transaction) and 1.32 per cent (on redemptions of capitalisation shares of collective investments vehicles, capped at €4,000 per transaction).

iv Other points of attention relevant to high-net-worth individuals

Besides the introduction of the Belgian Cayman tax and TSA, the Belgian tax and legal arena has undergone numerous other major changes that are also relevant for high-net-worth individuals. These include the following:

  1. A new Belgian code of companies and associations entered into force on 1 May 2019. The reform pursues simplification (reduction in the number of corporate forms), more flexibility (fewer compulsory rules) and modernisation (abolition of capital requirement for private limited companies). Given the regular use of corporate entities for estate planning purposes, this reform creates both opportunities and challenges from an estate planning perspective.
  2. As from 2018, the Belgian corporate income tax regime has been substantially overhauled with some changes only taking effect in 2019 and 2020.
  3. Belgium has introduced an ultimate beneficial owner (UBO) register as imposed by the Fourth and Fifth Anti-Money Laundering Directives of 20 May 2015 and 30 May 2018. As a result, all Belgian companies must be recorded in said register by 30 September 2019. The setup of the UBO register is broad (and arguably goes further than required by the directives). For example, according to the Belgian authorities, if a Belgian company is held through a chain of intermediary entities, all entities between the Belgian company and the ultimate beneficial owner need to be recorded in the UBO register. This means that trusts and foundations that directly or indirectly hold a Belgian company will be visible in the Belgian UBO register. This obviously triggers important privacy concerns.
  4. The DAC6 (Directive on Administrative Cooperation) was approved on 25 May 2018 and focuses on the reporting of aggressive tax planning. It charges qualified intermediaries (eg, lawyers, accountants, tax consultants, trustees, banks, etc.) and ultimately even the taxpayer to report cross-border arrangements to the local tax authorities. Reporting is compulsory from 1 July 2020, with a retroactive effect for reportable arrangements since 25 June 2018. Information will be stored in a secure database and will be exchanged between Member States. How DAC6 will be implemented in Belgium, especially for those that are bound to professional secrecy rules remains unclear.
  5. All regions will have to align their gift and inheritance tax legislation with the new (federal) succession and matrimonial property law rules (see Section III).