Annual tax on securities accounts: new anti-abuse rule & notification obligation

The new draft Program Law introduces new specific anti-abuse rules (“SAAR”) in relation to the annual tax on securities accounts (“TSA”). 

The TSA is set at an annual tax rate of 0,15% for securities accounts with an average value exceeding EUR 1 million. Both the applicable rate and threshold value remain unchanged.

The proposed changes reflect the recommendations made by the Court of Audit in September 2024 following the annulment of the previous specific anti-abuse rules by the Constitutional Court. The former specific anti-abuse rules included an irrefutable presumption of tax avoidance in two scenarios: (i) when securities accounts were split into multiple securities accounts (whether with the same financial institution or across multiple financial institutions) and (ii) when taxable financial instruments held in a securities account were converted into registered financial instruments (see our previous EY alert).

Targeted abuses

The newly proposed specific anti-abuse rule now incorporates a refutable presumption of abuse in two defined cases whereby the value of the taxable financial instruments on the securities account reaches the threshold value of EUR 1 million. The two targeted transactions include:

• The conversion of financial instruments held in a securities account into financial instruments not held in a securities account (for example registered financial instruments);
• The transfer of part of the financial instruments into a securities account to one or more other securities accounts (with an average value below EUR 1 million), provided that
• the securities account holder of the different securities accounts is the same, or
• the holder of the securities account from which the transfer is made is a co-owner of the securities account to which the transfer is made

The refutable character means that the presumption of abuse can be refuted if the transaction is mainly justified by a motive other than the avoidance of the TSA.

In the Explanatory Memorandum reference is made to the donation of a securities account by the securities account holder to his children, or to a divorce or decease which results in an undivided ownership of a securities account, as possible justifications for the splitting of a securities account. However, justifying the splitting of accounts based on different investment strategies, such as long-term versus short-term investments, is for instance not considered as admissible.  Also, the conversion into financial instruments not held in a securities account cannot be justified by the saving of financial costs. Furthermore, it is clearly stated in the Explanatory Memorandum that circumstances affecting a securities account beyond the control of the account holder cannot trigger the application of the new anti-abuse rule (for example technical, operational or organizational reasons inherent to the financial intermediary). 

If the necessary evidence of a motive other than the avoidance of the TSA cannot be provided, the conversion or transfer is not enforceable upon the tax authorities, and the value of the converted or transferred financial instruments is considered in the computation of the TSA.

If this is the case, the securities account holder is liable for the (additional) tax due, after deduction of the amount that the Belgian intermediary or responsible representative has already withheld.  

Attention is drawn on the fact that in case the average value of the account and the transferred and/or converted assets fall below the threshold of EUR 1 million during a reference period due to a drop of the market prices, it will still be necessary to monitor whether the threshold of EUR 1million is subsequently reached again, as the TSA will then become due again as well.

New notification requirement for Belgian intermediaries and responsible representatives

To ensure the correct application of the SAAR, Belgian intermediaries and responsible representatives (for foreign securities accounts) must notify targeted transactions to the tax authorities ultimately by the last day of the month following the end of the relevant reference period. For the first time, the notification will be due by 31 October 2025. 

For foreign securities accounts without a responsible representative in Belgium, the securities account holder must notify the transaction to the Belgian tax authorities. 

Fines ranging from EUR 250 to EUR 2.500 apply if a required notification has not been made or in the event of a late, inaccurate or incomplete notification. In the absence of bad faith, no fine is imposed.  

Interaction with the general anti-abuse provision in the Code of Miscellaneous Duties and Taxes (“CMDT”)

The introduction of a new SAAR does not affect the application of the general anti-abuse provision (Article 202 CMDT). Although it is not explicitly mentioned in the legislative texts, transactions not targeted by the SAAR can still be challenged based on the general anti-abuse provision if they are performed to avoid the TSA. The FAQ on the TSA mentions a non-exhaustive list of transactions that could qualify as abuse under the general anti-abuse provision (FAQ of 28 June 2023 on the annual tax on securities accounts, n° 102). 

Entry into force

The SAAR will enter into force on 1 July 2025. However, the notification obligation must be completed for the first time no later than 31 October 2025.