Specific anti-abuse measure for new tax on securities accounts applying as from 30 October 2020
The Belgian federal government has reached an agreement on a draft law introducing a new annual tax on securities accounts (“solidarity contribution”). According to a notice published in the Belgian Official Gazette of 4 November 2020, the draft law includes an anti-abuse provision that will apply retroactively as from 30 October 2020.
The new tax on securities accounts, which will be reinstated as an indirect tax, can be summarized as follows:
- the tax will apply to securities accounts held by resident and non-resident individuals, companies and legal entities (including legal constructions subject to the Cayman tax)
- On the average value of the taxable financial instruments (excluding nominative securities) on that securities account
- If that average value exceeds 1 million EUR
- the rate is 0,15%
- but limited to 10% on the difference between the taxable base and 1 million EUR (to mitigate the effects of the tax if the average value would just exceed the 1 million EUR threshold).
The draft law includes a general anti-abuse provision in the Code of Miscellaneous Taxes. It targets the following situations:
- Spread of taxable financial instruments over different securities accounts to avoid the threshold of 1 million EUR for an individual account
- Conversion of taxable financial instruments into nominative securities
- Transfer of securities account to a foreign legal entity which transfers the securities to a foreign securities account
- Transfer of securities account to a fund of which the parts are nominative
In those situations, there is a rebuttable presumption of abuse which means that the new tax will apply unless the taxpayer provides evidence to the contrary.
The government has decided that the anti-abuse provision, for the purposes of the new tax on securities accounts, will apply retroactively as from 30 October 2020. So any of the above transactions done as from 30 October 2020 will be deemed abusive (unless evidence to the contrary).
The draft law will be sent to the Council of State for legal review.