Belgian Constitutional Court annuls annual tax on securities accounts

In its decision of 17 October 2019, the Belgian Constitutional Court annuls the annual tax on securities accounts, with effect as of 1 October 2019. This implies that the tax can no longer be levied for future periods. However, taking into account the potential budgetary and administrative implications, the Court also decided that for the taxable periods that have elapsed till 30 September 2019, the tax remains due (case n° 138/2019).

With the aim of deriving higher tax revenues from capital and assets and in view of a more equitable fiscal policy, as from 10 March 2018, an annual tax is levied on securities accounts held by natural persons. The tax of 0.15% only applies if the average value of certain taxable financial instruments in the securities account(s) is at least EUR 500,000 per account holder.

The first taxable period started on 10 March 2018 and ended (at the latest on) 30 September 2018, for which the tax had to be paid by 30 Augusts 2019. The second taxable period runs from 1 October 2018 till 30 September 2019.

Soon after its introduction, several claims were filed with the Belgian Constitutional Court against the new annual tax on securities accounts.

According to the claimants the tax would be contrary to the Belgian constitutional principle of equality and non-discrimination and the European fundamental freedom of capital and/or services as the scope of the tax is selective.

Derivatives, such as options, futures and swaps, are not taxable. Also “structured products” that do not provide a “100% capital guarantee” such as real estate certificates, sprinter’s/turbo’s/speeders and financial warrants are out of scope.

Moreover, registered shares (nominative shares) that are not held in a securities account but only via a shareholders register, do not qualify as a taxable instrument either, and therefore do not count when it comes to determining whether the EUR 500,000 threshold is reached.

The Court decides that several elements of the tax on securities accounts, related to the taxable items and taxable base, create a manifest unreasonable difference in tax treatment between individuals. The following arguments are brought forward by the Court to substantiate her decision:

— Only taking into account certain financial instruments, like shares, bonds and parts/shares in investment funds/companies as “taxable” instrument, instates a difference in tax treatment between natural persons, depending on the type of securities they have, that cannot be reasonably justified in the light of the purpose of the law, i.e. deriving greater tax revenues from capital and assets of the “well to-do” in the light of a more equitable fiscal policy.

— Registered shares that are not held in a securities account escape from the tax. Hence, according to the Court, there is an unreasonable difference in tax treatment between natural persons depending on whether securities are held in a securities account or not. After all, a person with a (significant) amount of registered shares that are not held in a securities account, e.g. in a stock quoted company, is evenly wealthy as a person that has a same amount of shares that are held in a securities account.

— The share in the average value of the securities account is deemed to be proportional to the number of holders of the securities account. This does not always correspond with reality, as a result of which some holders could escape the tax. According to the Court, this creates an unreasonable difference in treatment towards the single holder of a securities account of more than 500.000 EUR.

According to the Court, all the other provisions of the law regarding the tax on securities accounts are related to the abovementioned elements and therefore also need to be annulled. The claimants also raised several other issues, amongst other things, regarding the EU fundamental freedoms (freedom of capital and services). The Court did, however, not further investigate the other arguments since they cannot result in a “broader” annulment.

Further to the Court’s decision, the law introducing the tax has been annulled. The Court, however, also decided (relying on article 8 of the special law of 6 January 1989 on the Constitutional Court) that the consequences of the law are maintained for the tax due for the taxable periods ending on or before 30 September 2019.

Hence, the annulment of the law has, in principle, only implications for the future, i.e. for taxable periods starting as from 1 October 2019. Consequently, in principle, financial intermediaries and/or natural persons cannot reclaim the tax that has already been paid. Moreover, they will in principle still have to declare and pay the tax in respect of a taxable period that has ended on or before 30 September 2019.

However, it remains to be seen whether the refund of the tax for the past can be claimed on other grounds.


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