Since 1 January 2017, a specific anti-abuse prevents to benefit from a WHT exemption when the Belgian tax administration proves that the dividends concerned are linked to a (set of) legal act(s) that are not genuine and aimed, even incidentally, at benefiting from the WHT exemption concerned.
Since 22nd January 2019, the fact that, upon a dividend distribution, a pension fund has not held in full ownership for an uninterrupted period of at least 60 days the shareholding concerned is a rebuttable presumption that the (set of) legal act(s) linked to these dividends are not genuine.
It remains possible for the pension funds to benefit from the relevant WHT exemption if they can evidence that the (set of) legal act(s) have valid commercial reasons that reflect the reality. However, failing to meet the new 60-day rule upon the dividend distribution normally prevents any WHT exemption under the form of a relief-at-source, therefore requiring the filing an (administrative) refund request.
Since the introduction of the new 60-day rule, a lot of points and practical aspects remained unclear, including (i) the reference point that should be used to assess the 60-day period and (ii) the type of certificates / confirmations that can be provided by the pension funds (and accepted by the Belgian WHT debtors). As a consequence, pending clarifications from the Belgian tax administration, the vast majority of Belgian WHT debtors had decided to refuse to grant any WHT exemption under the form of a relief-at-source (or quick refund) to pension funds.
On 15 April 2019, the Belgian tax administration published a practice note 2019/C/28 providing some additional (practical) guidance with respect to the new 60-day rule (Dutch version / French version).
In a nutshell, this practice note mainly confirms that the Belgian WHT debtors will need to obtain a certificate in which the income beneficiary confirms that (i) it has as its sole or main purpose the management and investment of funds raised for the purpose of paying out statutory or supplementary pensions and that (ii) it has held the shareholding on which the dividends are paid for an uninterrupted period of at least 60 days in full ownership at the date of the attribution or payment of the income or at a later date within 15 days from the date of the attribution or payment of the income.
The practice note also addresses several other aspects, including the possibility for the Belgian WHT debtors not to require a specific confirmation from the income beneficiary in case of nominative shares held in full ownership for at least 60 days. It also confirms the possibility for the income beneficiary to file an administrative refund request once the 60-day period is reached or if it can evidence that the relevant (set of) legal act(s) are genuine.
Conclusion & key takeaway
This practice note should be welcomed as it provides some additional (practical) guidance concerning the new 60-day rule. However, some technical points / practical aspects still remain unclear, such as the potential application of the new 60-day rule in the framework of specific WHT exemptions for foreign pension funds provided in a Double Tax Treaty or the situation where the shares on which a dividend is paid were acquired at different moments (and, potentially, only partly meeting the 60-day period).
With a broad experience and expertise on this matter, PwC can of course provide its assistance to assess the impact of these measures and, where required, identify potential action points and accompany you in the discussions with other stakeholders.