Belgium: Tax on securities accounts upheld, but certain anti-abuse measures struck down (Constitutional Court decision)

The Constitutional Court on 27 October 2022 (case 138/2022) upheld the new annual tax on securities accounts—finding the tax is compatible with the principles of equality and non-discrimination—but struck down certain specific anti-abuse provisions and the retroactive application of the general anti-abuse provision. 

The Parliament adopted the annual tax on securities accounts in February 2021. Read TaxNewsFlash

• The tax applies to securities accounts held by resident and non-resident individuals, companies, and legal entities (including legal constructions subject to the “Cayman tax”).
• Exemptions are available for certain financial institutions that hold securities accounts for themselves and for non-residents holding their own accounts with a “central securities depository” or with an account licensed by the National Bank of Belgium "deposit bank" that performs similar functions
• The new tax concerns all securities (including cash on the securities account) if the average value of the securities account exceeds €1 million, with the tax determined based on the entire average value.
• The tax rate of 0.15% applies on the average value of a securities account.

The law became effective on 26 February 2021 after publication in the official gazette, but a general rebuttable anti-abuse provision had a retroactive effective date of 30 October 2020. The retroactivity was aimed at taxpayers who might take anticipative actions in the period between the announcement of the tax (30 October 2020) and the entry into force of the law on 26 February 2021.

In addition, the law included two irrebuttable specific anti-abuse provisions when account holders try to avoid or reduce the tax by:

• Splitting the securities account into several accounts with the same financial institution, whereby securities that are held on one account are transferred to one or more other accounts, in order to remain under the €1 million threshold per account
• Converting (dematerialized) securities held on a securities account into nominative instruments that are not held on a securities account and which are directly registered with the issuer

The most important aspect of the court’s decision is that the annual tax on securities accounts remains in place. In addition, only the specific anti-abuse measures were struck down, while the general anti-abuse measure remains an effective instrument to tackle tax abuse.

Read an October 2022 report prepared by the KPMG member firm in Belgium