The reporting obligation for Belgian financial intermediaries (e.g. banks and insurance companies) to the Central Point of Contact (hereinafter: “CPC”) of the National Bank of Belgium was broadened by the Program Law of 20 December 2020.1 As a result, ultimately by January 31, 2022 Belgian financial intermediaries will for the first time (with respect to calendar years 2020 and 2021) have to report (i) the amounts that are held by their clients on bank and payment accounts as well as (ii) the value of certain financial contracts, e.g. securities accounts and insurance contracts branch 21, 23, 25 and 26 (excluding contacts within the framework of one the three pillars of pension saving). As a result of this new periodic reporting obligation (amongst others) the tax authorities will be able to see at a glance how much a natural or legal person holds with a Belgian financial intermediary and may thus get access to a bunch of additional (quite sensitive but interesting) information, that in the future may also be used for data mining. In the meantime, a Royal Decree has been published containing the implementing rules (with some surprises) and an appeal for annulment was filed with the Constitutional Court because of (deemed) incompatibly with privacy legislation.
The CPC as a tool for more effective tax control and collection: significant scope extension
The CPC was introduced in 2011 as a central register with an overview of bank accounts and certain financial contracts that are held with Belgian financial intermediaries by (individually identified) Belgian residents and non-residents, to enable a more efficient tax control and collection. The National Bank of Belgium provides general oversight to this central electronic database, whereas the data gathering occurs at the level of (i) the Belgian financial intermediaries and (ii) Belgian tax residents as regard to foreign ‘accounts’ who need to report the information to the CPC (upon risk of fines).
Over the years, the personal2 and material3 scope of the CPC has known many extensions. The latest scope extension was cast into legislation by the Program law of 20 December 2020, which again broadened the reporting obligations for Belgian financial intermediaries.
As already touched upon in a previous tax-flash, this new legislation provides that Belgian financial intermediaries (banks, insurance companies, payment institutions, recognized leasing companies,...) have to report the amounts that are held by their clients on bank and payment accounts as well as the value of certain financial (life insurance) contracts. They will have to do so for the first time with respect calendar years 2020 and 2021 by 31 January 2022 at the latest and will going forward be subject to a periodic reporting obligation (see below on the Royal Decree). Before only the account- and contract numbers and the identity of the account- and policy holders were reportable, but not the actual amounts. This extended scope of the CPC should result in a higher degree of transparency and allow Belgian tax authorities to gain more efficiently insight into the financial situation of a taxpayer to e.g. conduct a tax investigation or exercise (forced) tax collection.
The new legislation also aims to support the decision of the federal government to end the federal tax regularization regime for (historical) undeclared income and capital by December 31, 2023, by instigating negligent taxpayers to still declare (i.e. regularize) previous undeclared income and capital.
Note: the new reporting obligation for the Belgian financial intermediaries does not impact or change the obligation for Belgian residents to report accounts held with foreign financial intermediaries to the CPC and in their personal income tax return (i.e. they do not have to report the amounts).4
Royal Decree reveals interesting CPC modalities
On June 6, 2021, the Belgian government has issued a Royal decree (hereinafter: “RD”), further clarifying and determining how the above-mentioned scope extension has to be implemented in practice.
First, the RD determines the reporting frequency and due dates by which the amounts have to be reported by financial intermediaries to the CPC. In particular, the RD provides that the obligation for periodical reporting is triggered by (i.e. linked to) certain events or actions. The table below shows an overview of which information needs to be disclosed at which time-intervals.
Information to report |
Due dates (moments which count as an event/action) |
| Actions with respect to accounts: the opening or closing of an account, granting or revoking a power of attorney | Within 5 working days after the date of the event. |
The balances of cash and savings account |
Within one month after the (half year) closing date (30/06 and 31/12) i.e. twice a year. So, for balances at the (half year) cut-off date 30/06/20XX, reporting is required July 20XX. For balances at the cut-off date 31/12/20XX, reporting is required in January 20XX+1. |
Total value of financial (investment) contracts, other than life insurance contracts |
|
Total value of life insurance contracts “Branche 21”, “Branche 23”, “Branche 25” and “Branch 26’” |
Within 3 months after value date (31/12). So, for a value date on 31/12/20XX, reporting is required at the latest in March 200X+1. |
Second, the RD hasn’t determined a minimum threshold for the periodical reporting obligation. The RD was, though, supposed to establish a minimum threshold by which the amounts on cash-or savings accounts or the total value of financial contracts do not have to be disclosed. In other words, everything will need to be reported irrespective of the amounts on the account or total value of the reportable financial contracts.
Third, the RD provides that the information will be stored for 10 years, counting from the end of the calendar year in which the amounts or values were established.
Lastly and surprisingly, it seems that the Belgian government has used the RD to still add and strengthen the motivation for the CPC’s scope extension. This is quite unusual, as motivation for new policy choices within new legislation is typically provided in the preamble or in the explanatory memorandum regarding the relevant law. This seems to hint that the Belgian government anticipates the annulment appeal before the Belgian constitutional court (see below).
What about my privacy?
The broadening of the CPC raises concerns with respect to privacy. On the one hand, more transparency allows prevention and a more effective combat of tax evasion or other criminal behaviors (money laundering etc.). On the other hand, respecting the right of a private life is a precious right.
It should be no surprise that the new legislation regarding the broadening of the CPC was put into question in an advice issued by the Belgian Data Protection Authority (hereinafter: “DPA”).5 The Belgian DPA considers that the (legal) motivation for the broadening of the CPC as provided in the explanatory memorandum, was too ambiguous. Moreover, the Belgian DPA considers the broadening to be unnecessary, as the initial purpose of the central register - i.e. allowing tax authorities to ascertain with which financial institutions targeted people hold financial accounts and contracts - has already been achieved and the broadened scope does as such not change how tax authorities can obtain information from the CPC and financial intermediaries. According to an advice of the DPA, there is a clear proportionality issue, as the extensive centralization of financial personal data may go far beyond the goals of limiting and preventing tax fraud, especially in absence of a minimum threshold (supra).
Appeal for annulment filed with Constitutional Court
Given the sensitivity of the subject and the dismay following the new legislation, an appeal for annulment has been brought before the Constitutional Court.6
Also reparation legislation lurking around the corner
Besides to the appeal and the Royal Decree, also noteworthy is that the Belgian government is working on amending the last CPC-legislation to improve some of its previous shortcomings (i.e. lapses) and to address some of the issues previously pointed out by the Belgian DPA.
Conclusion
The legislation and new Royal Decree that broaden the CPC reporting obligations for Belgian financial intermediaries, have stirred up a fierce debate on privacy and (tax) transparency. The Belgian Constitutional Court will have to decide once more which common good trumps the other, i.e. the right to privacy or the fight of i.a. tax evasion and fraud more generally. In the end, the Court will have to decide on the proportionality of the new measure considering the intended goals. The absence of a minimum threshold for the periodical reporting might play an important role in that respect.7
- See also one of our previous e-tax flashes
- E.g. as of July 2016, the list of authorities which are allowed to make data inquiries in the CPC was vastly extended.
- E.g. as of July 2018, also hired vaults and some life insurance contracts must be reported by Belgian financial intermediaries.
- Probably because the Belgian tax authorities already receive more detailed information regarding foreign bank accounts and certain income from Belgian tax residents via (automatic) international exchange of information e.g. via the Common Reporting Standard (CRS).
- The Belgian Data Protection Authority (in Dutch: “de Gegevensbeschermingsauthoriteit”) is an independent Belgian organization which ensures that the principles of personal data protection are being obeyed. See i.a. advice nr. 122/2020, 26 November 2020.
- Case number 7612 (filed dd. 30.06.2021, published in the Belgian Official Gazette dd. 30.08.2021).
- For a more detailed analysis see also e.g. K. Hellinckx and E. Roggen, “Uitbreiding CAP: weldra kent fiscus alle bedragen op Belgische rekeningen”, Fiscale Actualiteit, 2021/38, 9-15.
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