GUIDE TO BELGIAN TAX LAW RESEARCH
I. INTRODUCTION
This guide summarizes the main characteristics of the Belgian legal and tax system and
offers an overview of sources that can serve as a starting point for further legal research.
A large part of Belgium’s public sources for tax law are available online on “Fisconetplus”,
which is a site maintained by the Federal Public Service of Finance. There are various ways
to search the site, such as by type of tax or by keyword. Most documents are in Dutch and
French, but it is possible to navigate the site in English and German. All websites referred to
in this guide can be consulted free of charge.
II. LEGAL FRAMEWORK
A. Structure of the Belgian State
The Kingdom of Belgium is a federal state with a rather complex three-level structure. At the
top level, we find the Federal State, the Communities 1 and the Regions 2 , which are all three
on an equal footing but are responsible for different fields. The next level is that of the
provinces, which have extensive powers in areas such as education, social and cultural
infrastructures and preventive medicine. At the bottom of the pyramid there are the
communes. Like the provinces, they have powers regarding local matters. Belgium is also a
founding member of the EU and is a member of numerous international organizations,
including WCO, WTO, and the OECD.
On each level there is a legislative branch and an executive branch. The Flemings merged
the legislative and executive branches of the Flemish Community and the Flemish Region
into one. There is only one judicial branch, on the level of the Federal State.
More information about Belgium can be found on the portal of the Belgian government, fully
accessible in Dutch, French, German and English.
B. Hierarchy of norms
The highest norms are treaties and norms of international institutions (such as the EU), as
long as the said instrument has direct legal consequences for citizens. Next in line is the
Constitution. Below the Constitution are the norms of the top legislative level, i.e. laws
(wet/loi) (Federal State), decrees (decreet/decret) (Regions and Communities, except for
Brussels-Capital Region) and ordinances (ordonnantie/ordonnance) (Brussels-Capital
Region). It is important to note that laws and decrees are one equal footing. They are
followed by the norms of the top executive level, called (Royal or Ministerial) decrees. The
level below is comprised of the legislative norms of the Provinces and Communes, and by
their respective executive norms.
1
2
There are three Communities: Flemish Community, French Community and German‐speaking Community. There are three Regions: Flemish Region, Walloon Region and Brussels‐Capital Region. 2 “RefLex” is a search tool for legislation of the Federal State, the Regions and the
Communities that also includes information such as preparatory documents and former
legislation. The site is available in Dutch and French. The Belgian State Gazette, which
includes legislative and executive documents of the Federal State (and some documents of
the Regions and the Communities), is also available online, in Dutch, French and German.
Legislation of lower levels is more difficult to find online and generally requires consultation
of the relevant legislative body’s website, if any. European legal documents can be found
through the portal of the EU. A good search tool for EU case law is “Curia”. EU documents
are generally available in all official languages of the EU.
III. FISCAL FRAMEWORK
A. How tax legislation fits in the general framework
The Belgian tax system can be divided into the three levels mentioned above, i.e. the top
level (Federal State, Regions and Communities), the level of the provinces and the level of
the communes.
On the top level, the three main categories of taxes levied by the Federal State are (i)
income taxes (inkomstenbelasting/impôts sur les revenus), (ii) value added tax (belasting op
de toegevoegde waarde/taxe sur la valeur ajoutée) and (iii) customs and excise duties
(douane- en accijnsrechten/droits de douanes et accises). 3 Both estate tax
(successierechten/droits de succession) and registration duties 4 (registratierechten/droits
d’enrégistrement) were originally levied at the national level but now have been largely
transformed into Regional taxes. 5 As a result, the rules governing those two taxes, for
example the tax rates, differ in every Region and only the general principles are still
governed on the federal level. The Regions also levy various other taxes, such as taxes on
businesses and the self-employed, taxes on non-residential floor space or taxes on
billboards, which vary from Region to Region. At the level of the provinces and communes
various forms of taxes are levied. They typically take the form of surcharges on income tax
or they consist of specific levies such as a tax on personnel employed, sewers and roads.
Belgian tax law has undergone a strong international influence, primarily by the introduction
of EU legislation and by the conclusion of tax treaties. It is generally accepted that double
taxation agreements have “direct effect” on domestic legal order, in the sense that they can
create immediate consequences and individual rights for the taxpayers and therefore can be
invoked during administrative or judicial proceedings. Treaty override is deemed illegal and
thus impossible, although some scholars may argue that a “de facto” treaty override may
occur (and has occurred in the past) 6 .
3
This is not an exhaustive list. Other federal taxes exist. Estate taxes are due upon transfer of property causa mortis. Registration duties are due upon recording of a deed or a document, such as a transfer of title inter vivos or the subscription of a mortgage. 5
Even though the Constitution grants both the Regions and the Communities the authority to levy taxes (within certain boundaries), in practice only the Regions exercise this authority at the moment. 6
For example, Belgium’s unilateral change of the domestic tax credit rules (Forfaitair deel van de buitenlandse belasting/Quotité forfaitaire d'impôt étranger) to which some tax treaties merely refer, are deemed a de facto treaty override by certain scholars. 4
3 Apart from the abovementioned sources, the Belgian Constitution is also an important tax
law source. The legality principle (the introduction of taxes is reserved to parliament) is
enshrined in the Belgian Constitution, as is the principle of annual ratification (the legislator
must annually renew the government’s authority for collecting taxes) and the equality
principle (no privileges may be introduced in tax matters and no tax exemptions or
reductions in tax may be introduced except by law).
As mentioned above, tax legislation can be consulted in full text online on Fisconetplus. The
following are included, inter alia:
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Tax treaties entered into by Belgium
EU Directives and other materials of the EU and other international
organizations relevant for tax law
Parts of the Constitution relevant for tax law 7
Parliamentary questions and other interrogatories
Income Tax Code (Wetboek van de inkomstenbelastingen/Code des impôts
sur les revenus) governing income taxes
Value Added Tax Code (Wetboek van de belasting over de toegevoegde
waarde/Code de la taxe sur la valeur ajoutée) governing VAT
Registration and Mortgage Tax Code (Wetboek der registratie, hypotheek- en
griffierechten/Code des droits d’enrégistrement, d’hypothèque et de greffe)
governing registration duties and alike
Code on Customs and Excise Duties (Wetboek van douane- en accijnsrechten/Code des droits de douanes et d’accises) governing customs and
excise duties
Code on Inheritance Taxes (Wetboek successierechten/Code des droits de
succession) governing estate taxes
Tax legislation on the level of the provinces and communes is not included in Fisconetplus
and may be hard to consult online. They generally require a search of the website of the
relevant province or commune, if any.
B. The tax administration
Pursuant to the constitutional principle of legality mentioned above, it is the legislative
branch that votes and amends tax laws. The executive branch can only implement tax laws
(e.g. by issuing royal decrees), following strict guidelines from the legislative branch. Apart
from that, the executive branch also issues guidelines, comments, private letter rulings etc.
These unilateral sources don’t have force of law and must respect the statutes.
On the level of the Federal State, competence for the imposition of taxes is vested in the
executive power exercised by the King (i.e. the executive branch), who is assisted by the
Minister of the Federal Public Service of Finance. The latter, in turn, is assisted by the
Federal Public Service of Finance (FPSF). The FPSF is divided into three major
departments dealing with the three main functions of the administration, i.e. (i) taxes and
7
The full text of the Belgian Constitution is available online, also in an unofficial English version, on the website of the Constitutional Court under the heading “basic texts”. 4 their collection, (ii) documentation of capital 8 and (iii) the treasury. Regarding income taxes,
individuals and companies are taxed by the tax office responsible for the area in which they
are resident or established. Regional taxes are also collected by the federal tax
administration. Provincial and municipal taxes are collected by special civil servants.
The portal of the FPSF contains a large amount of useful information, including contact data
of tax administration offices on all levels, a tax calculator and numerous publications in the
area of tax law and investment. All Belgian tax forms and guidelines on how to fill them out
can be downloaded from “FinForm”, which is part of “My MinFin”, an online application for
taxpayers to manage their personal tax file and declare their taxes.
As mentioned above, tax regulations and documents issued by the executive branch can be
consulted in full text online on Fisconetplus. These include, inter alia:
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Royal Decrees (Koninklijk Besluit/Arrêté Royal) and Ministerial Decrees
(Ministerieel Besluit/Arrêté ministériel) implementing the various tax codes
The tax administration’s commentaries on the Income Tax Code
(Commentaar betreffende het Wetboek van de inkomstenbelastingen/ Commentaire du Code des impôts sur les revenus 92)
Circular letters (Circulaire/Circulaire) and Decisions (Beslissingen/Décisions)
specifying the tax administration’s views on specific issues regarding the
various taxes
Advance rulings (Voorafgaande Beslissing/Décision anticipée) 9 , deciding a
particular tax issue of a particular taxpayer
Courses (Vakcursus/Cours professionnels) on tax law to educate tax officials
and the general public
Be aware of the fact that not all documents issued by the executive branch are published.
This is especially true for advance rulings. Documents of the executive branches of the
Provinces and Communes are hard to find online and generally require consultation of the
relevant body’s website, if any.
C. Tax litigation
In case of a dispute, there is generally a possibility for administrative review, meaning that
the case is reevaluated by an official of the tax administration itself. Sometimes, as is the
case for income taxes, this form of appeal is very formalistic and the taxpayer must first use
the route of administrative appeal before having the possibility to sue in court.
As regards to judicial review, please note that there are no specific tax courts in Belgium. 10
Tax matters are decided upon by the civil department of the District Courts, referred to as
8
This is the department that is in charge of the collection of information about registered property, i.e. the Land Registry Office (Kadaster/Cadastre). 9
Often referred to as “ruling”. Fisconetplus uses the term ruling. 10
Unlike issues regarding labor and social law (Labor Court) (Arbeidsrechtbank/Tribunal de Travail) and commercial law (Commercial Court) (Rechtbank van Koophandel/Tribunal de Commerce). 5 the Court of First Instance (Rechtbank van Eerste Aanleg/Cour de Première Instance, which
are courts of general jurisdiction. Verdicts rendered by District Courts may be appealed
before 5 regional Courts of Appeal (Hof van Beroep/Cour d’Appel).The main court of last
resort is called the Court of Cassation (Hof van Cassatie/Cour de Cassation). Its sole
purpose is to verify that the law has been properly applied and interpreted, i.e. it can only
confirm or annul judgments but cannot examine the case on the merits. Belgium does not
have a system of binding precedents.
If the violation of the tax rule also constitutes a criminal offence and the Public Prosecution
Service (Openbaar Ministerie/Ministère Public) decides to press charges, the case will be
handled before the penal department of the District Court, called the Correctional Court
(Correctionele rechtbank/Tribunal correctionnel). All serious criminal offenses are dealt with
by the eleven Courts of Assize (Hof van Assisen/Cour d’assises), the only jury courts in
Belgium. When one case is simultaneously pending before a civil and a penal court, the civil
judge cannot render a verdict until the penal matter has been decided. Moreover, the civil
judge is bound by the decision of the penal judge.
Issues of constitutionality are dealt with by the Constitutional Court (Grondwettelijk Hof/Cour
Constitutionelle), formerly called Court of Arbitration.
The Constitution gives each court the power to leave any regulation (i.e. rule established by
the executive branch), including those regulating tax matters, unapplied if it deems such rule
in violation of a higher rule of law (i.e. rule established by the legislative branch). The
taxpayer also has the possibility to fight the regulation before the Council of State(Raad van
State/Conseil d’état), the supreme court for administrative justice.
Case law can be found on “Juridat”, by clicking the link case law (rechtspraak/jurisprudence)
after selecting your language. Both the site and the cases, however, are only available in
Dutch and French and not all cases, especially those of lower courts, are included. Some
courts, including the Court of Cassation, the Constitutional Court and the Council of State
also have their own website.. A fair portion of case law in tax matters can also be consulted
on Fisconetplus, including, inter alia:
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Case law of domestic courts on the first level and the appellate level
Case law of the European Court of Justice
D. Other useful sources for tax research
For a general and elaborate overview of the Belgian tax system in English, see PATRICK A.A.
VANHAUTE, “Belgium in international tax planning (Second Revised Edition)”, August 2008,
published by IBFD Publications and also available online through the IBFD website
(subscription required).
Noteworthy tax treatises are (i) for tax law in general: TIBERGHIEN, “Handboek voor fiscaal
recht/Manuel de droit fiscal”, published annually by Kluwer, (ii) for corporate income tax: C.
CHEVALIER, “Vademecum Vennootschapsbelasting”, published annually by Larcier; J.
KIRKPATRICK and DANIEL GARABEDIAN, “Le régime fiscal des sociétés en Belgique”, Bruylant,
2003; C. CHERUY and C. LAURENT, “Le régime fiscal des sociétés holdings en Belgique”,
Larcier, 2008, (iii) for VAT: P. WILLE AND M. GOVERS, “Btw praktijkboek”, published annually
6 by Kluwer, (iv) for registration duties: F. WERDEFROY and A. MAYEUR,
“Registratierechten/Droits d’enregistrement”, published annually by Kluwer, and for (v)
estate tax: J. DECUYPER and J. RUYSSEVELDT, “Successierechten/Droits de succession”.
Other online sources that may be useful for tax research are (i) the website of the National
Bank of Belgium on which the annual accounts of Belgian registered companies can be
consulted, (ii) the website of the Federal Public Service of Justice, giving online access to
various other corporate documents, such as deeds of incorporation, as well as (iii) the
website of the Federal Parliament, containing the legislative history of federal statutes. The
legislative bodies of the Regions and Communities have similar websites. Generally, the
information on these websites can be consulted in Dutch and French (and sometimes
German).
Prepared by David Mussche, LL.M
Tax lawyer, NautaDutilh BVBA