On 5 January 2021, the Government published its bill introducing an annual tax on securities accounts in the Code of Various Duties and Taxes. As a recall, the tax is an annual tax on the holding of a securities account, levied at the rate of 0.15% on the average value of the account in excess of EUR 1.000.000.
By contrast with the draft bill of law which was circulating in November 2020 (cf. previous coverage), the bill now goes into great details explaining the exemptions for the financial sector.
Three exemptions are foreseen in order to “prevent repeated double taxation and to preserve Belgium’s participation in the professionally developed international system of securities transactions in a way that effectively aims at the legal conversion of an indirectly held securities account”:
1. Technical Working Instruments
The tax is not due in respect of securities accounts held as “technical working instruments” by:
- the National Bank of Belgium; the European Central Bank and foreign central banks exercising similar functions; a central securities depository; a credit institution; a brokerage company; an investment firm; an alternative investment fund manager (AIFM); an undertaking for collective investment in transferable securities (UCITS) management company; an insurance undertaking; a reinsurance undertaking; an institution for occupational retirement; a pension institution operating pension schemes which are considered to be social security schemes as well as any legal entity set up for the purpose of investment of such schemes; an alternative investment fund (AIF); a UCITS; a central counterparty; and,
- provided that these entities are not privately held in the meaning of art. 2, §1, 13°/1, (2) and (3) of the Belgian income tax code (i.e. the so-called dedicated funds under the Cayman Tax), a public or institutional AIF; a UCITS; an institutional company for collective investment in receivables; an entity that engages exclusively in operations that consist in the management and investment of funds collected for the purpose of providing legal or supplementary pensions or in the management of workers’ participations in the financing of their company or the group to which it belongs.
However, this exemption only applies provided that no third party, other than an institution, company or entity listed above, has a direct or indirect claim (“droit de créance” / “vorderingsrecht”) on the value of the securities account held.
According to the parliamentary works, securities account held by an insurance undertaking in the framework of unit-linked life insurance contracts (“Branche 23” / “Tak 23”) would not benefit from such exemption “since the holding of a portfolio by means of a unit-linked life insurance contract and an underlying securities account is fully equivalent to the direct holding of a securities account” and insurance contracts are “never held on a securities account”.
On the other hand, investment funds – UCITS or AIF – irrespective of their legal form – investment company or common contractual fund – are exempt considering their units are “in principle held on securities accounts” (and are thus in principle already in scope of tax) although they “may also be held in another form, which is not common in practice”.
The requirement that excluded institutions, companies and entities hold securities accounts on their own account (or only on behalf of excluded institutions) is intended to prevent the interposition of one of these excluded institutions from transforming the holding of a securities account by a non-excluded natural person, legal person or entity into another type of right which is not subject to the application of the tax. This would be particularly the case if economic rights to a securities account were held in the form of a simple claim (“simple droit de créance” / “louter vorderingsrecht”), rights of the beneficiary of an insurance policy, etc.
2. Settlement of Securities Transactions
The tax is not due in respect of securities accounts held, “for the purpose of using the special services relating to the settlement of securities transactions”, directly or indirectly, and exclusively for its own account, by a non-resident which do not allocate these securities accounts to a Belgian establishment, with a central securities depository or with a custodian bank.
3. Chain of Depositories
The tax is not due in respect of “chain of depositories”, i.e. securities accounts held, for the account of third parties, by a financial intermediary, to cover financial instruments recorded in securities accounts in its books or to cover rights held by an excluded institution, entity or company referred to under the first exemption above, with another intermediary or with a central securities depository.
That way, the tax is expected to remain neutral with regard to the chain of depositories, where the securities held by investors on their securities account with the bank are themselves held on the account held by the bank with a central securities depository (or not) which, for various securities that it does not “keep” itself, guarantees via its own securities account with the actual “depositary” of the securities.
Finally, the situation in which an excluded institution does not itself hold a securities account but holds it indirectly through rights which it holds vis-à-vis an intermediary who holds the securities account, does not result in the collection of the tax because the direct holding would not have given rise to the collection of the tax either.
Do not hesitate to contact the undersigned if you require additional information.