Advocaten / Avocats / Lawyers

Thursday, 23 September 2021

Belgian Annual Tax on Securities Accounts challenged before Constitutional Court: annulment appeal is no suspension

With its Law of February 17, 2021, Belgium introduced a new annual tax on securities accounts (hereafter: “ATSA”), which has replaced the previously annulled tax on securities accounts that the Constitutional Court in 2019 declared to be unconstitutional. The new ATSA entered into force on February 26, 2021. However, the specific and general anti-avoidance rules have retroactive effect as from October 30, 2020 (the day the Belgian government’s intention to introduce the new tax was made public through mainstream media in Belgium).

Recap: highlights of the ATSA

The ATSA applies to securities accounts that hold financial instruments with an average value exceeding 1 million EUR during a given tax year. The tax is levied on the securities account itself, and not on the account holder, the number of account holders hence being irrelevant. All financial instruments registered in securities accounts are taxable, including shares, bonds, turbos and speeders, but also cash that is held in the same account.

The tax rate is set at 0.15%. The average value is calculated over a 12-month taxable period from October 1 to September 30 and is based on the value on four reference dates: December 31, March 31, June 30 and September 30. However, given the ATSA’s entry into force, the first reference period started on February 26, 2021 and lasts until September 30, 2021. When securities accounts are opened or closed, or a taxpayer moves to another jurisdiction where the double tax treaty covers the taxation of wealth, only the applicable reference dates are taken into account.

For further details about the ATSA we refer to several newsletters on our website (in Dutch and French) or our contact details below.

Dutch

French

Challenged before the Constitutional Court

The first version of the ATSA was annulled by the Constitutional Court in October 2019 (see https://www.tiberghien.com/nl/1643/taks-op-effectenrekeningen-arrest-van-het-grondwettelijk-hof (Dutch) ). The Belgian legislature introduced a ‘new’ ATSA, which is now also challenged before the Belgian Constitutional Court. The ATSA is felt to be discriminative not only because other types of wealth are taxed very differently, but also because certain de facto and other exemptions apply in a discriminatory way. In addition, the former version of the ATSA was annulled by the Constitutional Court for a number of reasons and the current plaintiffs now argue that the flaws leading to that annulment are insufficiently redeemed in the new law.

Presumably, a decision by the Court may be expected in the 4th quarter of 2022.

It is important to notice that this is an annulment appeal, but not a suspension appeal. The ATSA therefore remains in effect and applies at least until the Constitutional Court renders its decision (meaning that taxpayers need to comply with the current legislation for the first reference period ending on 30th September 2021 and presumably also the second reference period ending on 30th September 2022).

Of course, certain steps may and should already be taken in the meantime to safeguard the individual interests of the taxpayers and/or the financial intermediaries with the aim of being entitled to a full reimbursement, should the ATSA be annulled.

 

Dirk Coveliers - Counsel (dirk.coveliers@tiberghien.com)

Yannick Cools - Associate  (yannick.cools@tiberghien.com)

 



Tiberghien’s international tax team will continue to monitor these and other tax developments relevant for Belgium / Luxembourg based multinational enterprises. Our editorial board consists of:

Koen Morbée (International and EU corporate tax, koen.morbee@tiberghien.com);

Michiel Boeren (International and EU corporate tax, michiel.boeren@tiberghien.com);

Katrien Bollen (HR tax and global mobility, katrien.bollen@tiberghien.com);

Ben Plessers (Transfer Pricing and Valuations, ben.plessers@tiberghien.com);

Gert Vranckx (VAT, customs, excises and other indirect taxes, gert.vranckx@tiberghien.com);

Rik Smet (International and EU corporate tax, rik.smet@tiberghien.com).

In case you have further questions on this publication or want to discuss a tax query, please do not hesitate to contact the author(s) or one of the members of the editorial board.

This newsflash is for information purposes only and cannot be relied upon as legal advice.

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