Press reports

01.01.2016

 HORECA

 
CERTIFIED SYSTEM OF CASH REGISTER (SCE)

Following the decision of 12.24.2015 the limited cabinet on the "cash register system Horeca" (SCE)

 
Following the judgment of the State Council, the limited cabinet decided to adapt the legislation on the introduction and use of cash register system (ECS). The 10% rule is deleted.
 
Each exploitation least 10% of the turnover consisted of treading water consumption of meals (restaurant and catering) was obliged to issue VAT receipts using an SCE.
 
 

The limit of the duty was set at a turnover of 25,000 euros.
 
Each exploitation revenue from the consumption of meals is at least 25,000 euros (excluding VAT) is obliged, as from 1 January 2016, to issue VAT receipts using an SCE. This limit must be calculated for the first time on the turnover of 2015.

Your company falls now for the 1st time in the obligation due to this new limit:
 
-You Must register no later than March 31, 2016 as a company HORECA on the online application SCE FPS Finance. http://finances.belgium.be/fr/E-services/registratiemodule_gks/registratiemodule_gerigstreerd_kassasysteem
 
-You Must have recorded the delivery of a cash register system and a FDM (black box) in the SCE application online FPS Finance on or before June 30, 2016
 
-Your SCE must be active later than December 31, 2016. You must ask the time VSC (VAT SIGNING CARD) to allow the distributor to activation for this date.

 

11/30/2015

Liquidation reserve

The new art.184 quater cir / 92 enables SMEs within the meaning of s.15 of the Companies Code establish annually liquidation reserves on taxable profit after corporation tax.
 
This reserve must be a separate fee, due by the company, which amounts to 10% of the amount of the reserve (art.219quater cir / 92).
 
This contribution is a non-admitted expenditure borne by society, while avoiding to shareholders / associates having to bear any tax if the company's liquidation.
 
There is thus a pre-financing of the distribution of reserves at the end of the company's business.
 
it is therefore a taxable reserve.
 
In case of further losses, this contribution is lost.
 
 
The liquidation of reserves
 
The liquidation of reserves allows to allocate the profit of the financial year as a reserve liquidation and actually pay in advance a 10% liquidation fee.
 
During the subsequent liquidation, no tax will be due.
 
According to the original rules of the liquidation of reserves, it was possible for the benefits from the financial year 2014 - 2015 tax year.
 
Now, this measure was extended to after-tax profits of financial years 2012 and 2013 through a special liquidation reserve '.
 
 
In practice
 
 
After-tax profits for 2013 and 2014 tax years can still be added to a special liquidation reserve.
 
The amount of this special liquidation reserve is limited to the amount recognized yet still in the reserves at the beginning of the financial year during which the special liquidation fee of 10% is paid.
.
Payment of 10% of the special liquidation tax must take place by 15 December 2015 for the special liquidation of reserves on the profits of the fiscal year related to the 2013 tax year and by 15 December 2016 at the latest for the special liquidation of reserves on profits for the financial year 2014 related tax EXERCISE.
 
The company must indicate on the payment form the tax identification number, "Art. 541 CIR 92 "and the taxation year to which the special tax terms.
 
The company is also introducing a special declaration at the latest at the date of payment, the form and content are yet to be established by AR. The company must provide a copy of this special report to his statement to the corporate income tax for the taxation year equal to the taxable period during which the special tax was paid.
 
Important Note: the waiting period for distribution of the liquidation of reserves at the reduced rate of withholding tax shall begin to run until the end of the accounting period in which the special liquidation reserve is established and not not from the end of the financial year for which the liquidation of reserves is established.
 
Finally, it should also be mentioned that the establishment of a special liquidation of reserves is not an obstruction to the simultaneous establishment of a liquidation of reserves 'ordinary'.

11/30/2015
 
Withholding tax
 
Withholding tax on interest and dividends increasing to 25% (2015)
 
The withholding tax on interest and dividend increases to 27% (2016)
 
Benefits in kind
 
The legislator has increased dramatically these:
 
- Heating and electricity
 
Advice :
 
In housing and rental costs, it is important to separate the electricity consumption and heating between private and professional.
 
In case of confusion,                                                                                                          2014                       2015
 
The package will be included in income is increased to: electricity:                          940€                       950€
           
                                                                                                        Heating:                      1,900 €                   1,900€
 
- Housing
 
Accommodation                     calculation is as follows: cadastral income x 3.8 x 100/60
 
Example: for a cadastral income of € 2,000 imputed income is € 13,000
 
Advice :
 
A detail of the areas used to plan can be an advantage in case of control
 

01/01/2015
 
Car

Benefit in kind (ATN) company car CO2 coefficient for 2015
 
Since 1 January 2012, the benefit in kind (ATN) for the free provision of a company car is calculated on the basis of catalog value and vehicle CO2 emissions using the following formula: Catalogue value of the vehicle x 6/7 x CO2 percentage.
 
To determine the percentage CO2, the CO2 emission rate of a vehicle is compared with a reference CO2 emission rate. The reference CO2 emission rates are set annually by Royal Decree.
 
Following the publication of the Royal Decree of December 16, 2014 the Belgian Official Gazette of 22 December 2014, the formula for calculating the taxable company car benefit, for 2015, is:
 
· Gasoline vehicles, LPG and natural gas: catalog value x [5,5 + ((CO2 emission - 110) x 0.1)] x 6/7%
 
· Diesel vehicles: catalog value x [5,5 + ((CO2 emission - 91) x 0.1)] x 6/7%
 
· Electric vehicles: catalog value x 6/7 x 4%
 
Compared to 2014, the coefficients for petrol vehicles, LPG, natural gas and diesel decreased. This corresponds to an increase in the value of the benefit compared to 2014.
 
Example: Diesel Car. Catalogue value € 25,000. CO2 emission rate of 105 g / km.
 
- ATN 2014: 25,000 x [5,5 + ((105-93) x 0.1)] x 6/7% = € 1,435.71 per year;
- ATN 2015: 25,000 x [5,5 + ((105-91) x 0.1)] x 6/7% = € 1,478.57 per year.
 
Limits:
 
· The particular advantage can never be less than 820 EUR per year (to be indexed: unknown amount for 2015).
 
· The basic percentage (5.5) is increased or decreased depending on the CO2 emission rate of the car. This percentage may not exceed 18% (upper limit) and drop below 4% (lower limit).
 
Source: S goupe social secretariat
 
 
For VAT deduction on car expenses,
 
the administration of VAT has chosen a different path:
 
Or private trips are recorded in a register and thus determines the professional part and the private part for deductions and per vehicle.
 
Either semi-package - =% private home -Place working distance x 2 + x 200 6000 x 100 / total km
 
Is limited to 35% business use (if more than 4 vehicles)
 
Tip: thank you to communicate the estimated mileage of each vehicle and the distance -Place private work
 

01/01/2015
 
GSM and computers, tablet
 
 
The benefit of GSM is set at a flat rate € 150 per year
 
The benefit of a computer or tablet is fixed in € 180
 
An internet connection 60 €
 
Tip: a private subscription of GSM and Internet is desirable
 
Any other benefit will be taxed as income to the actual value or a flat rate.
 
Any expenditure of your company, part of which is private and which would not have been included as income or charged to current account will be added back to income
 
Tip: Do not forget that all additional income is taxed at the highest rate and increases the basic social contributions.
Warning: we now have the obligation to spontaneously declare the income and benefits in kind in question. In case of non-declaration, the penalties are heavy.

 
01/01/2015
 
Sell a professional building without being taxed on the capital gain?
 
Here is a strategy to avoid tax on a capital gain of termination during the sale of a property that you used for business purposes: "decommission"
 
Suppose you intend to end your professional activity in personal name and want to avoid the taxman comes to use in passing before they can enjoy your well deserved retirement.
 
Indeed, if you want to sell your property you have used for years for business purposes (and to which you have practiced depreciation for years), the tax authorities will come you claim a significant tax on more- termination value you realize.
 
This capital gain (at least on the professional part of the building) will indeed be carried out following the sale of the building.
 
The capital gain will be determined by comparing your selling price (less selling expenses) with your purchase price (plus acquisition costs) less Depreciation.
 
The capital gain obtained in this way will normally be imposed to 16.5% (for fixed assets) on the basis of Article 171 of the CIR 1992, which may be still a famous bloodletting since the building will probably garnered a serious increase in value over the years.
 
There is however a solution for you!
 
Under Articles 28, first paragraph, 1 ° and 171 of the CIR 1992 are taxable as capital gains termination revenues that are obtained or recorded by reason or on the occasion of the full and final cessation of the business or the exercise of a profession, office, office or lucrative occupation and arising in capital gains on asset items assigned to the professional activity.
 
To be taxable, the capital gain must necessarily be carried out "because of" or "in connection with" the cessation of professional activity (Article 28, first paragraph, 1 ° of the CIR 1992).
 
It is on the tax administration rests the burden of proof that the capital gain is realized "because it has been terminated the activity in personal capacity" and "non-decommissioning", ie the close link between the termination and disposal - see the judgment of the trial court of Hasselt of 21 January 2010 (part No. 081831 / A).
 
One sees immediately that a little creativity can lead to significant tax savings.
 
It follows in fact from Comm.IR. 28 / 16THE capital gains obtained or recognized on tangible and financial assets and other portfolio securities are not taxable when the assets were used or affected sustainably exclusively for non-business purposes between the date of cessation and date of disposition.
It is perfectly possible to give the building "as" another destination (if you do not immediately need the sales price, of course).
 
A patience that is extremely well rewarded.
 
Thus, after the termination of your profession, you could for example use the first few years building a private dwelling or lease it to a third party (judgment of the Court of First Instance of Hasselt, 28 February 2007 - Role n 02.1017.A °) or even your own company (judgment of the Court of First Instance of Hasselt, 28 January 2010 - Role No. 081831 / A).
 
According to the court, the fact of just giving effective rent a property, within the period from the termination of a name to the active staff contribution in a BVBA, is indeed not a professional activity on the part of the taxpayer himself.
 
The element that the taxpayer is the manager of the SPRL, or the assignment by the tenant or not professional, it is not relevant in assessing the potential taxability.
 
Finally, it can also refer to early Decision No. 2010.262 of 31 August 2010, in which it was decided that a store space in which professional activity was exercised by the applicants had previously received another destination and that it entered in full in the private wealth. The Advance Rulings Service decided that the capital gain was realized on the sale of their house in which the plaintiffs had previously exercised their profession was not fully taxable as capital gain of termination pursuant to Article 28, first paragraph, 1 ° of the CIR 1992.
 
Beware though, just because a certain amount of time elapsed between the cessation of operations and the realization of the asset that was previously invested in the operation does not in itself exclude the more- value is cleared or ascertained due or in connection with the cessation of operation (see about Cass June 21, 1990, FJF No. 90/220;. December 2, 1998 Liège, FJF 99/100).
 
The capital gain will be taxable if the property on which the gain is realized is not returned to private use of the taxpayer or that he received any other destination between the time of termination and the time its realization, in which case even after the lapse of a long time between the termination and the time of sale or some other way, it can be assumed that the gain is derived or ascertained due or the occasion of the termination (judgment of the trial court in Hasselt of 21 April 2004 (No. role 99.1765.A).

Furthermore, there is no minimum period before it can no longer be a question of "decommissioning".
 
The only requirement is that the causal link between the work and the alleged production of surplus value must be broken at some point, for example because the building was affected for some years in private assets of the taxpayer or because it was leased by him.
 
Factual your case will therefore be decisive.
 
Jurgen Soetaert Deputy Editor of Fiscalnet
Bar of Leuven

 
01/01/2015
 
VAT status of directors, managers and liquidators in 2015
 
Context
 
The new status of the directors, managers and liquidators who invoice their services as legal entities has several consequences.
 
Individuals (Decision VAT No. 188 288 and the April 27, 2010)
 
The directors, managers and liquidators - natural persons - companies appear vis-à-vis third parties as organs of the corporation they represent and do not therefore act independently within the meaning of Article 9, paragraph 1 of Directive 2006/112 / EC of 28 November 2006.
 
As a result, when acting in the normal exercise of their statutory mission, they are in a relationship of subordination with respect to the legal entity that has given them this mission and are therefore not taxable persons for VAT for the tasks performed within this framework.
 
Corporations (VAT Decision No. ET125.180, of November 20, 2014) and (VAT No. 125180-2 Decision of 12.12.2014)
 
Legal persons acting as director, manager or liquidator of a company are in principle subject to VAT of that, for practical reasons, the administration did not require their VAT identification, which allowed them not to subject their operations to the tax. They could, however, opt for the application of the normal rules and therefore as a taxable person identified for VAT, subject their transactions to tax. So there was a possibility to opt-taxable as a moral person, for such treatment.
 
Following a review of the European Commission on the situation of the aforementioned corporations and likely to undermine this optional system, the administration decided to stick with effect from 1 January 2016 to Application of the normal rules, thus lead to the VAT identification of all corporate agents director, manager or liquidator of a company, and submission to tax their services provided as such, without the possibility of choice.
 
Chargeability common rules to determine whether VAT should be charged or not
 
Regarding the services provided by legal persons who, before 1 January 2016, chose not to subject their services to tax, there is in principle applicable, to determine whether or not they are taxable from 1 in January 2016, to comply with the normal rules of chargeability of tax, provided for in Articles 22 and 22bis of the VAT Code.

It follows from these provisions that the tax shall be payable only if the service is performed from 1 January 2016, except and to the extent that the remuneration was collected in 2015, in which case it (or part of it -ci) escape the application of the tax.
 
Derogating rules for directors'
 
Regarding the particular case of services remunerated by Directors' necessary to consider the timing of the tax due is the date of the annual general meeting of the company concerned took the award decision directors' fees, regardless of the date of the financial year. When the General Meeting is held in 2016, VAT will be due in any event.
 
Revision of the deduction in favor?
 
The passage (forced) on 1 January 2016 of a legal person-director situation that had opted for the non-submission of VAT of its services to a submission to the VAT obliged of its services brings the question of possible revisions VAT.
 
As a director, manager or liquidator (legal entity) was already subject to VAT, but had used a tolerance for not charging VAT, it is not really a problem. These taxpayers were already liable for VAT (with abandoning the right of deduction on account of the tolerance) and become covered with deductibility from 1 January 2016.
 
The normal rules for revisions are therefore applicable.
 
Management Companies
 
In principle, the management companies will have to charge VAT on their directors to pay from 1 January 2016. If the lessee of such benefits, however, has no right of deduction (eg some holdings) or are reporting mixed or partial (eg in social and cultural sectors, in the banking and insurance sector, in the hospital sector, etc.), this creates a cost of VAT. The new regime applies not only for periodic pay, but also for the Directors' chips or other benefits that are granted to legal persons-administrators.
 
The franchise tax system as a solution? (Article 56, § 2, and Article 56a of the Code of TVAet Royal Decree No. 19; see also Circular No. 34/2014 AGFisc (ET No. 123 849) of 25 August 2014)
 
As long as their turnover does not exceed € 15,000, excluding VAT, taxable persons may opt for the system of the franchise tax for small businesses. This procedure implies that we must charge (without VAT) and we shall not file VAT returns (periodicals), so that you can not exercise the right to deduct VAT paid upstream.
 
In principle, this regime can be applied by everyone (that meets the conditions) and above all the advantage that it can be combined with some other economic activities. The operations that can be exempted under Article 44 §§ 1 and 2 of the VAT Code (eg a doctor who exercises a directorship in a hospital and also has a medical practice) may indeed not be taken into account when calculating the threshold of 15,000 euros (see Article 56a, § 4, 3 ° of the VAT Code).
 
The directors, managers and company liquidators therefore also come into consideration for this exemption scheme provided that the threshold is not exceeded. Directors' fees are taken into account to see if the threshold is exceeded or not. How to calculate, designation or assignment mode (fixed periodic payments, Directors' fees, etc.) does not matter (see on this subject already the parliamentary question by Senator Clotilde Nyssens No. 3-6 of 8 August 2003, Bull. of Q. & A., Senate, No. 3-5 of 2 December 2003, p. 365).
 
Foreign directors clearly can not benefit from the franchise tax system in Belgium. Here the aim is not established in Belgium administrators (see Article 56a, § 3, 3 ° of the VAT Code; this exclusion is also not contrary to the VAT Directive: Ingrid Schmelz see judgment against Finanzamt Waldviertel October 26, 2016, Case C-97/09 (Reports of Cases 2010 I-10465)
 
The VAT group as a solution?
 
The creation of a VAT unit between the management company and the company paying the invoiced remuneration of directors is obviously possible under normal conditions, but this does not change the position of the VAT group on the right to deduct the input tax. It is only on the flow of charge-that there will be no VAT charged, which in itself can be used for optimization, but it takes the game worth the candle ...
 
Stefan Ruysschaert
 
Advisor to the Finance FPS Antwerp
 
Professor at the Faculty of Economics of the University of Ghent
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