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Newsflash: Tax on Securities Accounts is back

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02/03/2021

 

1.      Introduction

On 11 February 2021, the Belgian Federal Parliament adopted a law introducing an annual tax on securities accounts (“jaarlijkse taks op de effectenrekeningen”/“taxe annuelle sur les comptes-titres”) (TSA). The TSA will be incorporated in the Code on Miscellaneous Rights and Duties (“Wetboek diverse rechten en taksen”/“Code des droits et taxes divers”) (CMRD) and is intended to replace the initial first version of the tax on securities accounts which was annulled by the Constitutional Court on 17 October 2019. The Belgian Federal Government is confident that the new TSA is fully in line with the Belgian constitutional non-discrimination principle.

2.      Personal scope of application

The TSA entails an annual subscription tax on the holding of a securities account by Belgian resident and non-resident individuals and legal entities.

The TSA applies to Belgian resident individuals and legal entities holding a securities account with an intermediary, irrespective as to whether or not the intermediary is incorporated or established in Belgium.

As to Belgian non-resident individuals and legal entities, the TSA applies in principle only to securities accounts held with a Belgian intermediary, i.e. an intermediary incorporated or established in Belgium. However, securities accounts held by Belgian establishments of non-residents, which form part of the assets of such establishments and are held with an intermediary, will also be subject to the TSA regardless where the intermediary is located.

In this respect, it should be noted that “settlors” of “legal constructions” for purposes of the so-called Belgian Cayman Tax also qualify as holders of a securities account regarding securities accounts held by such legal constructions.

Securities accounts held by certain qualifying financial intermediaries are exempt provided no third party has any direct or indirect claim relating to the value in the securities account. An exemption is likewise provided for (i) non-residents holding securities accounts, directly or indirectly and for their own account, with a central securities depository or licensed custodian bank and not using these securities accounts for their Belgian establishment, and (ii) the securities accounts held by an intermediary for third parties as hedging for financial instruments held on their securities accounts.

3.      Tax base and tax rate

The applicable tax base is the average value of taxable financial instruments (e.g. shares, notes, options, futures, swaps etc.) and any cash balance held on a securities account during a reference period of twelve consecutive months starting on 1 October and ending on 30 September of the subsequent year. The reference period will also end, for example, upon the closing of the securities account, or when the holder of the securities account becomes a resident of a tax treaty country that has the taxing rights over capital income on the securities account. 

The first reference period has started on 26 February 2021 and will end, in principle, on 30 September 2021.

The average value of taxable financial instruments on a securities account during a reference period equals the sum of the value of said taxable financial instruments on so-called “reference points” divided by the amount of reference points. The reference points during the reference period are 31 December, 31 March, 30 June and 30 September. In the event a securities account is opened or closed during a reference period, only the reference points on which the account existed will be considered.

The applicable tax rate of the TSA is 0.15%. The amount of the TSA will, however, be limited to 10% of the difference between the tax base and EUR 1 million. The TSA is not deductible for Belgian corporate income tax purposes.

4.      Compliance

The TSA is due on the first day following the end of the reference period.

The Belgian intermediary should withhold, declare and pay the TSA at the latest on the 20th day of the third month following the end of the relevant reference period. Non-Belgian intermediaries can appoint a TSA representative in Belgium. In that case, they will be considered a Belgian intermediary for TSA-purposes. Such TSA representative will then be held jointly and severally liable towards the Belgian Treasury for declaring and paying the TSA due and for complying with the relevant reporting obligations. In absence of a Belgian intermediary, the holder of the securities account will in principle have to declare and pay the TSA, unless such account holder can demonstrate that the TSA has already been declared and paid by a Belgian or non-Belgian intermediary.

The National Bank of Belgium, the European Central Bank and similar foreign central banks as well as a central securities depository, credit institutions and stock exchange companies are generally considered an intermediary for purposes of the TSA.

5.      New anti-abuse rules

Two anti-abuse rules with respect to the TSA have also been introduced.

Pursuant to a first, more specific, anti-abuse rule, the following two operations effected as of 30 October 2020 are not opposable to the Belgian Tax Authorities:

-       the splitting of a securities account in multiple securities accounts held with the same intermediary; and

-       the conversion of taxable financial instruments, held on securities account, into registered financial instruments.

In addition, a general anti-abuse rule (GAAR) has been introduced in the CMRD pursuant to which a legal act or set of legal acts forming a single transaction will in principle not be opposable to the Belgian Tax Authorities if they can demonstrate “tax abuse”. The GAAR is highly similar to the one applicable with respect to income taxes.

As a result of its introduction in the CMRD, the GAAR not only applies to the TSA but also to other taxes included in the CMRD, such as the tax on stock exchange transactions. As to the TSA, the GAAR has retroactive effect and applies as of 30 October 2020.

6.      Entry into force

The TSA has entered into force on 26 February 2021. However, the new GAAR applies as of 30 October 2020 with respect to the TSA.

 

Should you have any questions, please don’t hesitate to contact Lievin De Wulf (l.dewulf@liedekerke.com), Pierre Desenfans (p.desenfans@liedekerke.com) or Jasper Bossuyt (j.bossuyt@liedekerke.com).