Published December 2017
This country-specific Q&A provides an overview to private client law in Belgium.
It will cover taxes, succession laws, wills, trusts and their structures.
This Q&A is part of the global guide to Private Client. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/private-client/
Which factors bring an individual within the scope of tax on income and capital gains?
Personal income tax is due by inhabitants of Belgium, i.e. persons whose domicile or seat of wealth, if not domiciled in Belgium, is located in Belgium. ‘Domicile’ refers to a factual situation characterised by the person’s habitual residence (which implies a certain continuity); ‘seat of wealth’ refers to the central place from where one’s assets concerned are managed.
Unless proven otherwise, all individuals listed in the National Register of Individuals are considered inhabitants of Belgium. A taxpayer is liable to the additional income tax of the Region (Flemish Region, Brussels Capital Region or Walloon Region) in which his tax residence is located on 1 January of the tax year.
Subject to the provisions of double tax treaties, non-residents are in principle subject to non-resident income tax on their Belgian source income.
What are the taxes and rates of tax to which an individual is subject in respect of income and capital gains and, in relation to those taxes, when does the tax year start and end, and when must tax returns be submitted and tax paid?
An individual’s taxable income is determined by four income categories to each of which specific rules for the calculation of the net income apply:
- real estate income
- income from movable property (including dividends, interests and royalties)
- earned income (including employment income, business income and pensions)
- miscellaneous income, i.e. income that does not fall under category i) to iii)
In general, the net real estate income and net earned income is taxable at progressive rates from 25% up to 50% (50% for income exceeding 38.830 EUR (income year 2017). Several exemptions apply, e.g. child allowances. The tax amount is increased with communal tax (7% in average).
In principle, income from movable property is subject to withholding tax if paid in Belgium. Since 1 January 2017 a rate of 30% applies to most dividends and interests. If no withholding tax is levied, the income must be declared in the annual tax return and a tax equal to the withholding tax will be levied.
If a certain income is listed as miscellaneous income, it is taxed separately without adding it to the other income. The most important types of miscellaneous income are:
- capital gains on the sale of shares, except if realised as part of the normal management of one’s private wealth (33% tax)
- capital gains realised on the transfer of an important share participation in a Belgian company (more than 25%) to a non-EEA legal entity (16,5% tax)
- capital gains on the sale of Belgian real estate (other than the family dwelling) within 8 or 5 years after acquisition (16,5% or 33% tax)
- occasional (non-professional) profits and proceeds with speculative intent (33% tax).
The tax year is the same as the calendar year.
The annual personal income tax return can be filed on paper or electronically via www.taxonweb.be In practice, the paper version of the tax return must generally be filed by the end of June, while taxpayers that file their return electronically are generally granted a couple of weeks more. Tax advisors and accountants that file the tax returns of their clients are generally granted a couple of months more. Special terms apply in case e.g. a taxpayer emigrates during the year.
The tax must be paid within two months upon reception of the tax bill.
Are withholding taxes relevant to individuals and, if so, how, in what circumstances and at what rates do they apply?
In principle, income from movable property is subject to withholding tax if paid in Belgium. Since 1 January 2017 a rate of 30% applies to most dividends and interests.
Employers must withhold withholding tax on the wages and salaries they pay to their employees.
Is there a wealth tax and, if so, which factors bring an individual within the scope of that tax, at what rate or rates is it charged, and when must tax returns be submitted and tax paid?
There is no general wealth tax. However, real estate is subject to an annual tax which is calculated on its deemed income (‘cadastral income’).
As from 1 January 2018 individuals will be subject annually to a new tax on Belgian and non-Belgian securities accounts. Portfolios of EUR 500.000 or more will be taxed at 0,15% on the full amount of the account.
Is tax charged on death or on gifts by individuals and, if so, which factors cause the tax to apply, when must a tax return be submitted, and at what rate, by whom and when must the tax be paid?
A. Competence of the Regions
Gift and inheritance tax fall under the competence of the three Regions: the Flemish Region, the Brussels Capital Region and the Walloon Region. As a consequence, different gift and inheritance tax rules apply in the three regions. The most relevant differences relate to the categories of gift and inheritance tax rates and the criteria to be considered as partners (spouses and cohabiting persons).
In each region the categories of gift and inheritance tax rates depend on the degree of kinship between the donor or deceased and the beneficiary, the value of the gift or inheritance and the nature of the donated or inherited goods.
B. Relevant factors
The relevant factor that causes Belgian gift tax to apply is the registration of the donation with the Belgian tax authorities. Such registration is mandatory for each donation that is done before a Belgian notary. The registration of a donation of tangible movable property is not mandatory if not done before a Belgian notary; such donation is not subject to gift tax unless it is voluntarily registered with the Belgian tax authorities.
Belgian inheritance tax is due if the deceased was a resident of Belgium, i.e. if he had his domicile or his ‘seat of wealth’ in Belgium. These criteria should be interpreted in the same way as for income taxes (cf. question 1).
For Belgian residents, the region where the donor or deceased has his place of residence will in principle determine which rules will in principle apply (Flemish, Brussels or Walloon).
For non-residents, gift and inheritance tax is due on the donation or inheritance of Belgian immovable property, according to the rules that apply in the region where the immovable property is located. Gift tax on movable property is only due if the donation is registered with the tax authorities. Upon the death of a non-resident, no inheritance tax is due on his Belgian movable property.
C. Inheritance tax
When a Belgian resident passes away, inheritance tax is due on the net value of his worldwide estate. Subject to certain conditions and within certain limits, foreign inheritance tax on foreign immovable property can be offset against the Belgian inheritance tax on the foreign immovable property.
For non-residents, inheritance tax is only due on their Belgian immovable property. If the deceased was a resident of the EEA, inheritance tax is due on the net value, while for non-EEA-residents inheritance tax is due on the gross value.
An inheritance tax return must be filed within four, five or six months from the deceased’s death, depending on the physical location where the deceased was at the time that he passed away (in Belgium/EEA/outside EEA). Upon receipt of the tax bill, the tax is due within two months.
In the Flemish Region, inheritance tax is due as follows:
- In direct line and between partners: movable and immovable property are taxed separately at rates of 3% to 27% (27% as from EUR 250.000). The calculation is made on the net share per beneficiary.
- Between brothers and sisters: no split between movable and immovable property. Tax rates go from 30% - 65% (65% as from EUR 125.000). The calculation is made on the net share per beneficiary.
- Between all other beneficiaries: no split between movable and immovable property. Tax rates go from 45% - 65% (65% as from EUR 125.000). The calculation is made on the total net share of these persons, then divided amongst them according to their share in the inheritance.
In the Brussels Capital Region, inheritance tax is due as follows:
- In direct line and between partners: tax rates go from 3% to 30% (30% as from EUR 500.000). The calculation is made on the net share per beneficiary.
- Between brothers and sisters: tax rates go from 20% - 65% (65% as from EUR 250.000). The calculation is made on the net share per beneficiary.
- Between uncles/aunts and nephews/nieces: tax rates go from 35% - 70% (70% as from EUR 175.000). The calculation is made on the total net share of these persons, then divided amongst them according to their share in the inheritance.
- Between all other beneficiaries: tax rates go from 40% - 80% (80% as from EUR 175.000). The calculation is made on the total net share of these persons, then divided amongst them according to their share in the inheritance.
In the Walloon Region, inheritance tax is due as follows:
- In direct line and between partners: tax rates go from 3% to 30% (30% as from EUR 500.000). The calculation is made on the net share per beneficiary.
- Between brothers and sisters: tax rates go from 20% - 65% (65% as from EUR 175.000). The calculation is made on the net share per beneficiary.
- Between uncles/aunts and nephews/nieces: tax rates go from 25% - 70% (70% as from EUR 175.000). The calculation is made on the net share per beneficiary.
- Between all other beneficiaries: tax rates go from 30% - 80% (80% as from EUR 175.000). The calculation is made on the net share per beneficiary.
D. Gift tax
A donation of movable property that is registered, will be taxed at flat rates:
- in the Flemish Region and the Brussels Capital Region: 3% in direct line and between partners, and 7% between all other persons;
- in the Walloon Region: 3,3% in direct line and between partners, 5,5% between brothers and sisters, uncles/aunts and nephews/nieces, and 7,7% between all other persons. However, as from 1 January 2018, the rate of 7,7% will be abolished and the 5,5% tax rate will apply to all other persons than the direct line and partners.
Immovable assets are taxed at progressive rates. In the Flemish Region and the Brussels Capital Region the rates vary between 3% and 27% in direct line and between partners (27% as from EUR 450.000). In the Walloon Region, rates vary between 3% and 30% in direct line and between partners (30% as from EUR 500.000). For other persons, the applicable rates are higher, up till 40% as from EUR 450.000 in the Flemish and the Brussels Capital Region and up till 50% as from EUR 450.000 in the Walloon Region.
Are tax reliefs available on gifts (either during the donor’s lifetime or on death) to a spouse, civil partner, or to any other relation, or of particular kinds of assets (eg business or agricultural assets), and how do any such reliefs apply?
The most important tax reliefs concern the family dwelling and the assets of family owned businesses or shares of family owned companies.
In the Flemish and the Brussels Capital Region, the part of the family dwelling that is inherited by the partner is exempt from inheritance tax. The ‘partner’ is defined as (i) the deceased’s spouse, (ii) his legal cohabitant or – but only in the Flemish Region – (iii) the person with whom he has cohabited de facto for at least three years and with whom he has had a common household.
In the Walloon Region, subject to conditions the first part up to EUR 160.000 in the family dwelling that is inherited by the partner or in direct line is exempted from inheritance tax. The part exceeding EUR 160.000 is taxed at progressive rates that go from 5% to 30% (30% as from EUR 500.000). ‘Partner’ is defined as (i) the deceased’s spouse or (ii) his legal cohabitant. However, as from 1 January 2018, a full inheritance tax exemption will apply to the part in the family dwelling that is inherited by the partner, regardless the value of that part.
Only the Walloon Region provides for a specific regime for the donation of the family dwelling. Subject to conditions, a reduced progressive gift tax rate of 1% to 30% applies (30% as from EUR 500.000) to the donation to the spouse or the legal cohabitant.
Family owned businesses and companies
Each region has a specific regime for the donation or inheritance of assets invested in a family owned business or shares of a family owned company, subject to certain conditions. The conditions in the Flemish and Brussels Capital Region are almost identical.
In all three regions, a donation of those assets or shares is tax exempt if all conditions are met. In the Walloon region, the exemption can also apply to shareholder loans to the family owned company.
If inherited, these assets or shares are taxed at a flat inheritance tax rate of 3% or 7% in the Flemish and Brussels Capital Region. In the Walloon Region, the conditions are more strict, but if met, an inheritance tax exemption applies to these assets or shares and even to shareholder loans to the family company.
Do the tax laws encourage gifts (either during the donor’s lifetime or on death) to a charity, public foundation or similar entity, and how do the relevant tax rules apply?
In each region, reduced flat rates apply for gifts or bequests to certain bodies and entities such as not-for-profit organisations, international not-for-profit organisations, private foundations and public foundations, or similar entities established in the EEA:
- in the Flemish Region: 8,5% for bequests and 5,5% for gifts,
- in the Brussels Capital Region: 25% or 12,5% for bequests and 7% for gifts, and
- in the Walloon Region: 7% for bequests and 7% for gifts (subject to conditions).
How is real property situated in the jurisdiction taxed, in particular where it is owned by an individual who has no connection with the jurisdiction other than ownership of property there?
Real property is subject to an annual tax which is calculated on its deemed income (‘cadastral income’). If the real property is not rented out or if the annual rental income does not exceed EUR 2.500, then no other taxes are due and no tax return has to be filed by the non-resident owner. If the annual rental income exceeds EUR 2.500, a non-resident income tax return must be filed and the income will be taxed at progressive rates of 25% up to 50%.
In case of a taxable capital gain realised by a non-resident on the sale of his real property, the tax will be withheld from the purchase price by the notary.
Are taxes other than those described above imposed on individuals and, if so, how do they apply?
Is there an advantageous tax regime for individuals who have recently arrived in or are only partially connected with the jurisdiction?
Foreign executives, specialised foreign staff or foreign research staff that are appointed to work temporarily in Belgium can apply for a special expatriate tax regime. Eligible persons must prove that they perform activities which require a special knowledge and responsibility, thus executive functions. If approved, they are treated as non-residents and are therefore only taxable on their Belgian source income. The benefits are two-fold: (i) certain expatriate allowances or reimbursements of expenses and (ii) the so-called 'foreign business travel exclusion' are excluded from the taxable basis.
What steps might an individual be advised to consider before establishing residence in (or becoming otherwise connected for tax purposes with) the jurisdiction?
Before emigrating to Belgium, one might consider the impact of the so-called ‘Cayman tax’ on his rights or entitlements towards trusts and low-taxed foreign legal entities (cf. question 22). Given the differences between the Regions with respect to inheritance and gift tax legislation, one might also consider the implications of settling in a certain Region.
What are the main rules of succession, and what are the scope and effect of any rules of forced heirship?
Belgian succession law is based on blood relationship and partnership. If no last will is made, intestacy rules apply. According to Belgian law there are four categories of heirs:
- parents and brothers and sisters;
- ascendants, including the parents if no brothers or sisters;
- collaterals, other than brothers and sisters, and their descendants.
Heirs from a closer category exclude the heirs from further categories. Within a category, the persons closest to the deceased exclude the others. In case of a predeceased heir, his descendants will jointly take up his position in the inheritance of the deceased.
If the deceased leaves both descendants and a surviving spouse, the latter inherits the usufruct on the entire estate whilst the descendants inherit the bare ownership. If there are no descendants, the surviving spouse can be entitled to a greater share depending on the matrimonial regime that applied to the couple. If there are no heirs, the surviving spouse receives the full ownership of the entire estate.
A surviving legally cohabiting partner only inherits the usufruct on the family dwelling and its furniture, so a much more limited right than a surviving spouse.
Children, the surviving spouse and the ascendants are legally entitled to a minimum share of the estate (‘the reserved portion’). If the forced heirs do not receive their reserved portion, they can make a claim for reduction. Ascendants will no longer be considered forced heirs when the new Belgian succession law enters into force on 1 September 2018.
The reserved portion is calculated as a fraction of the sum of all assets of the deceased on the day of his death and all gifts made by him during his lifetime.
The reserved portion of the children varies according to their number: 1/2nd if there is one child, 2/3rd if there are two children and 3/4th in case of three or more children. The remainder is the ‘disposable share’ of which the testator can dispose freely. As of 1 September 2018, the total reserved portion of all children will be 1/2nd, leaving a disposable share for the testator of 1/2nd.
The surviving spouse is entitled to the usufruct on half of the estate, but as an absolute minimum has right to the usufruct on the family dwelling and its furniture.
Legal cohabitants can disinherit each other completely; the surviving legal cohabitant is not a forced heir.
Is there a special regime for matrimonial property or the property of a civil partnership, and how does that regime affect succession?
In the absence of a marital contract, the statutory matrimonial property regime applies, which is a regime of separation of property with a community of marital gains. In principle, all income and assets the spouses acquire during their marriage is common property. Only premarital assets, donations/bequests (even received during the marriage), strictly personal goods and some specific assets belong to the exclusive property of the spouses.
In a marital contract spouses can make other arrangements:
- adopt a regime of full separation of property: all income and assets belong to one spouse or the other. Assets acquired by both spouses and assets that neither spouse can prove to be his own, will be joint property.
- adopt a regime of full community property: all income and assets (including premarital assets) of the spouses belong to the community property; spouses do not have exclusive property.
When a married person passes away, the matrimonial property regime is settled and distributed in order to determine the composition of the estate. The estate is composed of the deceased’s exclusive property (if any) and in principle half of the community or joint property (if any).
Legal cohabitants do not have a community property. Assets acquired by both cohabitants and assets that neither of them can prove to be his own, are joint property.
What factors cause succession laws to apply on the death of an individual?
According to the European Succession Regulation 650/2012 of 4 July 2012 by which Belgium is bound, the law applicable to the succession as a whole shall be the law of the state in which the deceased had his habitual residence at the time of his death. A person may choose as the law to govern his succession as a whole the law of the state whose nationality he possesses at the time of making the choice or at the time of death.
How does the jurisdiction deal with conflict between its succession laws and those of another jurisdiction with which the deceased was connected or in which the deceased owned property?
The succession law that applies according to the European Succession Regulation can either be the law of an EU-country or a non-EU country (including the UK, Ireland and Denmark that do not participate in the Regulation). If the law of a non-EU country is applicable, its rules of private international law have to be followed. If those rules provide for renvoi, this should in principle be accepted, except e.g. if the deceased has made a valid choice of law.
In what circumstances should an individual make a Will, what are the consequences of dying without having made a Will, and what are the formal requirements for making a Will?
If a person wants to deviate from the intestacy rules, he must make a will.
There are three types of wills:
- A public will is drawn up by one notary in the presence of two witnesses, or by two notaries, and is subject to formal requirements. The testator has to dictate his will, which is then fully read by the notary to the testator before it is signed by the testator.
- An international will, which is drafted according to the rules set out in the Convention providing a uniform law on the form of an international will (Washington, 26 October 1973). It is less formalistic and consists of both a private document, which the testator declares to be his last will, and a notarial deed. The notary, nor the two witnesses know the content of the will.
- A holographic will is the least formal. It must be handwritten by the testator, dated and signed.
According to the European Succession Regulation, the whole estate is governed by one single law. Immovables located in Belgium are thus subject to the law that is applicable according to the Regulation and will no longer automatically be subject to Belgian law.
How is the estate of a deceased individual administered and who is responsible for collecting in assets, paying debts, and distributing to beneficiaries?
The heirs automatically obtain possession of all assets, rights and claims of the deceased, subject to the obligation to pay all debts of the estate (‘saisine’). Transmission of the estate is therefore not subject to an administrative procedure (no probate).
If a testamentary executor is appointed in a will, he must ensure that the wishes of the deceased are executed. However, his rights are limited: in principle he does not have ‘saisine’, and cannot liquidate, nor divide the estate.
Do the laws allow individuals to create trusts, private foundations, family companies, family partnerships or similar structures to hold, administer and regulate succession to private family wealth and, if so, which structures are most commonly or advantageously used?
Belgian law allows the creation of control structures. The most frequently used control structure is a civil/family partnership, because it is low-cost, flexible and discrete. Civil/Family partnerships are often used for investment portfolios or art collections. Because of tax reasons, they are primarily used for movable assets.
How is any such structure constituted, what are the main rules that govern it, is there any requirement for registration with or disclosure to any authority or regulator, and what information about the structure is available to the public?
A civil/family partnership can be constituted by signing a private deed. It has no legal personality and is subject to only a limited number of legal provisions, which leaves the partners a great deal of flexibility to organise it as they wish. It is also a very discrete entity since neither its constitution deed, nor its annual accounts need to be published. However, based on the 4th European AML-Directive, Belgium has to create a national UBO-register with information on the UBO’s of a.o. companies and legal entities. Currently, it is unclear how this will impact civil/family partnerships.
How are such structures and their settlors, founders, trustees, directors and beneficiaries treated for tax purposes?
A civil/family partnership is a tax transparent entity. Income and capital gains will be taxed directly in the hands of its partners as if the underlying assets were held directly by them.
Are foreign trusts, private foundations, etc recognised?
Although Belgium does not have its own trust law, foreign trusts are recognised. Trusts will be governed by the law of choice of the settlor. When no choice of law is made, or if that choice is invalid, the trust will be governed by the law of the state where the trustee has/had his habitual residence at the time it was created.
Unlike trust law, Belgium does have its own legislation regarding private foundations. A foreign foundation will be recognised in Belgium and will be governed by the law of the state where its main establishment is located.
How are such foreign structures and their settlors, founders, trustees, directors and beneficiaries treated for tax purposes?
Tax inspectors sometimes struggle with the tax treatment of trusts, especially in the field of inheritance taxes. Although some take the position that any distribution by a trust upon or even after the death of the settlor should be taxed with inheritance tax, the opposite can be argued for certain types of trusts.
For income tax purposes, Belgian resident founders and third-party beneficiaries of a ‘legal construction’ must report its existence in their annual income tax return. Trusts and low-taxed foreign legal entities (including foundations) are considered as such legal constructions. In addition to this reporting obligation a look-through tax (commonly referred to as the ‘Cayman-tax’) has been introduced in 2015 for these legal constructions. Their founders (which is a broadly defined concept) or third-party beneficiaries are taxed as if they themselves received the income generated by these legal constructions. It should however be noted that this Cayman-tax will be modified (again) shortly (probably as from 1 January 2018), eliminating a.o. the notion of third-party beneficiaries. Any distribution by a trust or low-taxed legal entity will be taxed as a dividend in the hands of the receiver. The look-through approach will therefor only apply to the founders if no distribution was made in a specific year.
To what extent can trusts, private foundations, etc be used to shelter assets from the creditors of a settlor or beneficiary of the structure?
A private foundation has legal personality and could therefore, theoretically, be used to shelter assets from creditors. Since Belgium does not have its own trust law and trusts do not occur frequently in Belgian practice, it remains unclear what the position of a debtor would be if a trust would be used to shelter his assets. A lot would depend on the type of trust and the entitlements of the debtor towards (the assets of) the trust. In any case, if assets are transferred to a trust/private foundation by the debtor with the fraudulent intention to impoverish himself, a creditor who already had a claim that predates the transfer, can go to court to ask for the non-opposability of this transfer.
What provision can be made to hold and manage assets for minor children and grandchildren?
A civil/family partnership (cf. question 18) or a private foundation (cf. question 26) can be used as structures to hold and manage assets for (grand)children.
When assets are donated to (grand)children, an administrator can be appointed to protect the children and administer the assets, e.g. until they reach a certain age. The same goes for bequests made in a will.
Are individuals advised to create documents or take other steps in view of their possible mental incapacity and, if so, what are the main features of the advisable arrangements?
In a so-called ‘living will’, one can anticipate potential legal incapacity by making ‘extrajudicial protection’ arrangements. These arrangements can deal with personal matters (e.g. health matters) and/or the administration of goods. By giving a power of attorney while still capable, one can avoid a court-appointed administrator.
What forms of charitable trust, charitable company, or philanthropic foundation are commonly established by individuals, and how is this done?
Two types of legal bodies are frequently used by individuals for charitable reasons: private foundations and non-profit associations. Unlike a non-profit association, a private foundation has no members. Its assets must be used by its directors for an ‘altruistic’ private purpose, e.g. the wellbeing of a disabled child. A non-profit association is often dedicated for furthering a more social cause.
What important legislative changes do you anticipate so far as they affect your advice to private clients?
Recently, an important reform of the Belgian succession law has been approved. The new rules will enter into force on 1 September 2018. All gifts that were made, even the ones before 1 September 2018, will in principle be subject to this new legislation. Moreover, the government is currently working on a reform of matrimonial property law. Since there has not been submitted a legislative proposal so far, the content and the timing of the reform remains unclear. The Belgian Companies Code will soon be completely reformed as well.