The Belgian Parliament is currently proceeding with the final discussion and the subsequent vote of a new tax on securities accounts, to be levied in principle by the Belgian financial intermediary.
The legislation aims to have experienced investors (wealthier individuals as well as all types of organisations) contribute to the expenditure triggered by the COVID-19 pandemic and other budgetary challenges.
Securities accounts in scope
The tax applies to all securities accounts held by Belgian residents, both in Belgium and abroad, including if held through certain foreign legal structures that fall within the scope of the so-called 'Cayman tax' (a tax-transparency regime for Belgian individuals and legal entities).
The tax also applies to securities accounts held by non-residents with Belgian financial institutions (unless a double tax treaty (DTT) prevents the tax being levied on non-residents, such as the Belgian-Dutch DTT).
The treatment of accounts held by non-residents with a foreign branch of a Belgian financial institution is somewhat less clear on the basis of the draft law. It is however expected that such accounts would not be subject to the tax.
As set out below, no tax will be due if the value of the securities (and cash) on the account is less than €1m.
Tax rate and taxable value
The annual tax is levied at the rate of 0.15 per cent on the 'average value' of the securities account over a period that in principle runs from 1 October to 30 September.
The average value of the assets on the securities account is assessed four times a year on the following dates: 31 December, 31 March, 30 June and 30 September (with certain exceptions).
The 'average value' includes all types of securities (shares, bonds, derivatives, etc) that are held on an account, including the cash balance that would be held on what otherwise is a securities account. This cash amount can however be excluded from the calculation base by transferring it to a regular bank account.
For certain securities, value fluctuations may be reflected in the 'average value' of the securities account, eg listed securities or funds that publish a daily net asset value.
This is not the case for other securities such as unlisted dematerialised securities. In these cases, the intermediary is expected to take into account the value at which the securities are initially credited on the account. It is less clear to what extent subsequent value fluctuations are taken into account. In this respect, statements by the Minister of Finance in Parliament suggest that in such cases the holder may report a value decrease to the tax authorities in order to obtain a refund. Except for cases of abuse, there does not however seem to be a general and ongoing obligation to report on value fluctuations based on new information (and then pay additional tax or claim a refund).
Reporting and payment
The tax is to be levied, reported and paid by the financial intermediary, unless the account is held with a non-Belgian institution. In the latter case, the tax is reportable and payable by the account holder, unless the account holder proves that the tax was already reported and paid by a Belgian or foreign intermediary.
Similarly, if a securities account is held by a potentially exempt entity (see below) in a framework where the tax is due (because a third party has a claim in respect of the value of the account, as is the case with a 'branch 23' insurance policy), then the tax is also reportable and payable by the account holder.
Conversion of taxable securities
Registered securities are not subject to the tax, unless these happen to have been 'scripturalised', causing them to be traded through securities accounts.
However, converting dematerialised securities acquired and held on an account in registered securities will not be enforceable if done as of 30 October 2020. In such cases, the value of the converted securities at the time of conversion will continue to be added to the 'average value' of the securities account for the application of the tax.
Of course, once converted the intermediary has limited or no visibility on the continued taxable nature or value of the securities. According to statements by the Minister of Finance in Parliament, it will be up to the account holder to report and pay additional tax (where the value of the securities has increased) or claim a tax refund (where the value of the securities has decreased, including where the decrease causes the securities account to drop below the exempt amount of €1m (see below)). The unenforceability of the conversion ends if a new event occurs that is enforceable, such as a sale of the securities (leading to the securities no longer being taxed).
Exemption for securities accounts below €1m
No tax is due if, on a specific individual account, the value of the securities (and cash) is less than €1m. The tax is also limited to 10 per cent of the difference between the average value and the threshold of €1m, in order to avoid the tax reducing the value of the securities account below the €1m threshold.
In this respect, the position of each account is reviewed separately, which means that multiple accounts held by a single holder are not amalgamated. However, 'splitting' a securities account in multiple securities accounts held at the same intermediary is not enforceable if done as of 30 October 2020. The non-enforceability lasts until changes occur that would have made a 'splitting' enforceable. Absent sufficient knowledge of the financial institution where the account is being held in this respect, the liability to pay the tax also shifts to the holder of the account.
The above unenforceability rule applies to 'pure splitting' of accounts that does not reflect underlying changes in the rights to the assets (such as in case of a divorce, or other causes of transfer or changes of rights). If such underlying change is present, then the 'splitting' may still be reviewed under a new general anti-abuse provision.
Exemption for securities accounts held by financial or fund sector entities
Since it is securities accounts that are being taxed, there is no impact on the identity or capacity of the holder.
Hence, the tax applies to all individuals, companies and other legal entities (including government authorities), irrespective of whether they are exempt from income taxes. The underlying idea is that there are a number of taxes to which any person or entity is subject (such as VAT on purchases, stock exchange transaction taxes, etc), with this tax being added to the list.
The drafters of the new tax have however taken great care not to affect the functioning of (central) depositaries, such as Euroclear and also BNY Mellon, and to ensure that the system of holding securities through a chain of securities accounts remains unaffected as well. Furthermore, securities accounts held by financial sector entities for which such securities accounts are a core element of their activity are generally exempt.
The following exemptions are particularly important to note:
- Accounts directly or indirectly held by non-residents (not operating through a Belgian branch) for their own account with a central depository (Euroclear, BNY Mellon).
- Accounts held by a financial intermediary in order to cover securities positions held by clients in securities accounts with the intermediary. This exemption seeks to limit the tax to the 'end account holder' and avoids multiplication of the tax in the 'chain of securities accounts' held through various intermediaries.
- Accounts held by banks, (re)insurance companies, central banks, pension funds and other pension arrangements, stock exchange houses, central counterparties and central securities depositories. This exemption however does not apply if a third party (other than entities listed in points 3 and 4) has a direct or indirect claim in respect of the value of the securities account that would be held by the institution as a nominee, such as securities (essentially funds certificates) typically held by an insurance company in the framework of 'branch 23' life insurance policies.
- Accounts held by regulated collective investment funds or entities for their own account. The rationale behind this exemption is that often the units in such funds are held on an account and are then potentially subject to the tax in the hands of the investor. This exemption does not however apply to so-called fonds dédiés, ie funds or compartments controlled by an individual together with their relatives.
- Accounts held with an intermediary or central depository for the account of one of the entities listed in points 3 and 4.
If a potentially exempt account holder holds, on one single account, financial instruments both for its own account and that third parties have claims on, then the full value held on the account will be used as a basis to calculate the tax. But in such cases, the holder is, for example, allowed to take the otherwise exempt assets off the account and transfer them to an account only holding securities that are held for the holder’s own account.
The annual tax on securities accounts will not be deductible for income tax purposes.
Entry into force
Assuming the draft law is adopted by Parliament in its current form (which is expected soon), the first reference period of the tax would start on the day after the publication of the law in the Belgian State Gazette and end on 30 September 2021.
The Belgian government has clearly tried to shape the new tax on securities accounts in such way as to limit the risk of successful challenge before the Constitutional Court on grounds of incompatibility with the Belgian Constitution.
The preparatory works contain substantive justification, eg for the exemption of accounts below €1m, the exemption of certain financial sector entities and the anti-abuse provisions. Nevertheless, attempts to seek annulment of the tax cannot be excluded.
The purpose of the tax is to cause informed investors (the more wealthy individuals, and all types of organisations) to contribute to the expenditure triggered by the COVID-19 pandemic and other budgetary challenges