Belgian Federal Government approves law introducing a minimum tax for multinational companies (Pillar 2)

Published


Yesterday, on 14 December 2023, Belgium approved the final law introducing a minimum tax for multinational companies and large domestic groups. This is the Belgian transposition of Council Directive (EU) 2022/2523 of 15 December 2022 ensuring a global minimum level of taxation for groups of multinational enterprises and large domestic groups in the European Union. The next step is the publication in the Belgisch Staatsblad / Moniteur Belge so that the law can enter into force on 31 December 2023.

The law includes a coordinated system of rules designed to ensure that large (domestic/MNE) groups with a consolidated revenue exceeding EUR 750 million for at least two of the four previous years, are subject to a minimum effective tax rate of 15%.

What you need to remember

  • The law is applicable to financial years beginning on or after 31 December 2023.
  • Belgium has introduced a qualified domestic minimum top-up tax.
  • The Belgian prepayment system for corporate income tax will also apply to top-up taxes in Belgium or payable by the ultimate parent of the group.
  • The Belgian ruling office will not grant advance rulings on questions with respect to global minimum taxation.
  • The first Belgian compliance obligation is the QDMTT return to be submitted before the last day of the 11th month following the end of the financial year. For groups that follow the calendar year this means 30 November 2025.
  • The Belgian R&D tax credit will be refundable within four years, making this a qualified refundable tax credit under Pillar 2.
  • Now the Pillar 2 legislation is voted, we expect the Belgian government to announce that the loss limitation rule (limiting the use of carried forward tax losses that may offset taxable income exceeding EUR 1 million) will increase again from 40% (applicable for FY 2023) to 70%.

How did Belgium implement the EU Directive?

  • In general, the Belgian law closely follows the (Dutch/French translation of the) EU Directive and therefore the OECD Model Rules.
  • As the law has been adopted before year-end, the minimum tax for multinational companies and large domestic groups, will enter into force as of 31 December 2023.
  • Belgium (like other European countries) introduced a domestic top-up tax (QDMTT) that is aimed to qualify for the QDMTT Safe Harbour as well as the Income Inclusion Rule (IIR, or taxes collected by the ultimate parent) and the Under-Taxed Payment Rule (UTPR, or backstop rule).
  • The Transitional (CbCR) Safe Harbours are included in the law in line with the guidance released by the OECD on 20 December 2022. With respect to the qualifying CbC Report, reference is made to the Belgian legislation introducing transfer pricing documentation.
  • The law explicitly mentions that there will be no possibility to request advance rulings from the Belgian ruling office with respect to subjects related to the law introducing a global minimum tax.

What if a top-up tax has to be paid?

  • For groups with multiple Belgian entities, taxes due resulting from the QDMTT or UTPR will by default be payable by the Belgian entity with the largest (net qualifying) income. However, the law provides that groups may opt to identify another entity to pay the amount (in the first instance). Any compensation for this entity will be exempt in line with the principles of the Belgian group contribution regime/exceeding borrowing cost.
  • Top-up taxes due under the QDMTT and IIR will be included in the prepayment schedule for Belgian corporate income tax. This means that in the event that insufficient prepayments are made during the year, the company will be subject to a tax increase. In principle the top-up taxes due can be paid in four instalments in order to avoid the tax increase, but for 2024, companies have until 20 December 2024 to fulfil the requirements.
  • The following tax returns have been introduced:
    • a QDMTT return to be submitted to the Belgian tax authorities before the last day of the 11th month following the end of the financial year. For groups that have accounting periods ending on 31 December 2024, the first QDMTT return deadline is 30 November 2025.
    • a GloBE return (only in some cases) before the last day of the 15th month following the end of the financial year. For the first year, groups have 18 months. For groups that have accounting periods which follow the calendar year, the first GloBE return deadline is 30 June 2026.

Miscellaneous

  • For any top-up taxes due, group entities shall be jointly and severally liable for the payment of any top-up taxes arising under the law.
  • In the event of a violation of the provisions of the law, a fine of EUR 2,500 to EUR 250,000 may be imposed.
  • The proposed legislation decreases the time frame during which Belgian R&D tax credit can be refunded (reducing it from five to four years). This would lead to the qualification of the R&D tax credit as a ‘qualified refundable tax credit’, which has a more favourable impact on GloBE ETR calculations as compared to a non-qualified refundable tax credit.
  • The most recent administrative guidance from the OECD in the framework of Pillar 2, issued in July 2023, is not yet included in the law. The Council of State pointed out that any updates to the GloBE Rules included in the Directive will in principle have to be made through amendments to be transposed by the Member States. Therefore, it is expected that additional legislation will be published to cover this additional guidance.

Let’s connect!

For more insights on the impact of the proposed rules, or details on what to disclose in your 2023 accounts, please do not hesitate to reach out to your regular PwC contact, or contact Pieter Deré or Evi Geerts.