20 June 2005. - An Act to amend the Income Tax Code 1992 and the Code of Taxes assimilated to the Mutual Assistance Stamp of the Competent Authorities of the Member States in the field of direct taxes and insurance premium taxes (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I^er. - General provisions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Chapters II and III of this Law transpose into Belgian law the amendments to Directive 77/799/EEC of the Council of the European Union of 19 December 1977 concerning the mutual assistance of the competent authorities of the Member States in the field of direct taxes, certain excise duties and taxes on insurance premiums, by the directives 2004/56/EC of the Council of the European Union of 21 April 2004 and 2004/106/EC of the Council of November 2004.
CHAPTER II. - Income tax changes
Art. 2. Article 12 of the Act of 17 May 2004 transposing in Belgian law Directive 2003/48/EC of 3 June 2003 of the Council of the European Union on the taxation of the income of the savings in the form of interest payments and amending the Code of Taxes on the income of 1992 on the matter of movable pre-payment is replaced by the following provision:
“Art. 12. - Section 338 of the same Code is replaced by the following provision:
"Art. 338. § 1^er. Except in the cases referred to in Article 338 bis, this Article regulates mutual assistance between Belgium and the Member States of the European Union in the field of income taxes.
§ 2. For the purposes of this article, the following means:
(a) "competent Belgian authority": the Minister of Finance or the person or service authorized by the Minister of Finance to exchange information with the competent authority of another Member State of the European Union;
(b) "State": a Member State of the European Union;
(c) "tax": income and capital tax as defined in section 1^er of Council Directive 77/799/EEC of 19 December 1977 concerning the mutual assistance of the competent authorities of the Member States in the field of direct taxes and taxes on insurance premiums.
§ 3. The competent Belgian authority may request the competent authority of another State to provide it with information that may enable it to properly establish the tax with respect to a specific case.
Where it is required by the competent authority of another State to provide the information that may enable it to properly establish the tax with respect to a specific case, the competent Belgian authority is required to give a favourable response to the request, unless it appears that the competent authority of the requesting State has not exhausted its own usual sources of information, which it could have used in this case in the event of a risk to obtain the information
In order to communicate the information referred to in the preceding paragraph, the competent Belgian authority shall, as appropriate, conduct the necessary research.
To obtain the requested information, the competent Belgian authority, or the Belgian administrative department seized by the latter, proceeds as if it were its own initiative or at the request of another Belgian authority.
§ 4. The competent Belgian authority shall provide, for categories of cases determined under the consultation procedure referred to in § 12, to the competent authority of another State, without prior and on a regular basis, all information that may enable it to properly establish the tax.
§ 5. The competent Belgian authority shall communicate, without prior request, all information that may permit the correct establishment of the tax, of which it is aware, to the competent authority of any other State interested in the following situations:
(a) the competent Belgian authority has reasons to assume that there is an abnormal tax reduction or exemption in the other State;
(b) a taxpayer obtains, in Belgium, a tax reduction or exemption that should result in an increase in tax or a tax limitation in the other State;
(c) transactions between a Belgian taxpayer and a taxpayer of another State through a permanent establishment of these taxpayers or through one or more third parties, located in one or more other countries, are likely to result in a tax reduction in Belgium, the other State or both;
(d) the competent Belgian authority has reasons to assume that artificial transfers of profits within groups of enterprises result in a decrease in tax in another State;
(e) following the information provided by the competent authority of another State, information is collected in Belgium that may be useful for taxing in that other State.
The competent Belgian authority may, as part of the consultation procedure referred to in § 12, extend the exchange of information provided for in paragraph 1^er cases other than those referred to in them.
The competent Belgian authority may, in any other case, communicate to other States, without prior request, information that may permit the correct establishment of the tax, of which it is aware.
§ 6. The competent Belgian authority shall transmit the information referred to in §§ 2 to 5. If the provision of this information is encountered by obstacles or is denied, the competent Belgian authority shall promptly inform the competent authority of the other State, indicating the nature of the obstacles or reasons for its refusal.
§ 7. For the purposes of the preceding provisions, the competent Belgian authority and the competent authority of the State to whom the information is intended may agree, within the framework of the consultation procedure referred to in § 12, to authorize the presence in Belgian territory of agents of the tax administration of the other State. The terms and conditions for the application of this provision are determined under the above-mentioned consultation procedure.
§ 8. All information which the Belgian State is aware by application of this article is kept secret in the same way as the information collected under its legislation. In any case, this information:
- are accessible only to persons directly affected by the tax establishment or by the administrative control of the tax establishment;
- are disclosed only on the occasion of judicial proceedings or proceedings leading to the application of administrative sanctions, initiated for or in relation to the establishment or control of the tax establishment, and only to persons directly involved in such proceedings; it may, however, be referred to in public hearings or judgments, if the competent authority of the State providing the information does not object to it at the time of their initial transmission;
- are, in no case, used other than for tax purposes or for the purposes of judicial proceedings or proceedings leading to the application of administrative sanctions, incurred for or in connection with the establishment or control of the establishment of the tax.
However, where legislation or administrative practice establish, for domestic purposes, a stricter secret obligation, the competent Belgian authority is not required to provide information if the State to whom it is intended does not undertake to comply with this stricter obligation.
The competent Belgian authority may, however, permit the use of this information for other purposes in the State which receives it when, according to Belgian law, their use is possible, in Belgium, for similar purposes in the same circumstances.
Where the competent Belgian authority considers that the information it has received from the competent authority of another State may be useful to the competent authority of a third State, it may transmit it to the competent authority of a third State with the agreement of the competent authority which has provided it. Where the competent authority of a State considers that the information it has received from the competent Belgian authority may be useful to the competent authority of a third State, the competent Belgian authority may consent to the transmission of this information.
§ 9. This article does not impose on the Belgian State the obligation to conduct research or transmit information when the conduct of such investigations or the collection of the information in question is contrary to its legislation or administrative practices.
The transmission of information may be denied in the event that it would lead to disclosure of a commercial, industrial or professional secret or a commercial process, or information that would be contrary to public order.
The competent Belgian authority may refuse the transmission of information when the requesting State is unable to provide information of the same nature for reasons of fact or law.
§ 10. At the request of the competent authority of another State, the competent Belgian authority shall notify the consignee of all acts and decisions of the administrative authorities of the requesting State and concerning the application in its territory of the tax laws.
Notification requests indicate the name, address and any other information that may facilitate the identification of the recipient and mention the act or decision to be notified.
The notification shall take place according to the Belgian law rules in force for the notification of similar acts.
The competent Belgian authority shall promptly inform the requesting authority of the other State of the follow-up to the request for notification and, in particular, the date on which the decision or act was notified to the consignee.
§ 11. Where the situation of one or more taxpayers has a common or complementary interest for the Belgian State and one or more States, the competent Belgian authority may agree with the competent authority of another State or other States to carry out simultaneous controls, each in the territory of its own State, with a view to exchange the information obtained, whenever it appears more effective than controls that would be carried out only in one State.
The competent Belgian authority independently identifies taxpayers for whom it intends to propose simultaneous control. It informs the competent authorities of each other State concerned of cases which, according to it, should be subject to simultaneous controls. It motivates its choice, to the extent possible, by providing the information that led to this decision. It indicates the time frame for these controls to be carried out.
When a request for simultaneous control is submitted, the competent Belgian authority decides whether it wishes to participate. It shall give to the competent authority who has sent the request confirmation of its acceptance or shall notify the competent authority of its reasoned refusal to perform such control.
The competent Belgian authority designates a representative to lead and coordinate control.
§ 12. For the purpose of applying the provisions of this Article, the competent Belgian authority shall, if any within a committee, participate in consultations between:
- the competent Belgian authority and the competent authority of another State, at the request of one of them, in the case of bilateral matters;
- the competent Belgian authority, the competent authorities of the other States and the Commission of the European Communities, at the request of a competent authority of one or more States or the Commission of the European Communities, to the extent that it is not exclusively bilateral issues.
The competent Belgian authority may communicate directly with the competent authority of one or more States. The competent Belgian authority may, in agreement with the competent authority of one or more States, allow the authorities designated by it to take direct contact for specific cases or for categories of cases.
When the competent Belgian authority and the competent authority of another State have agreed on bilateral tax matters, they shall inform the Commission of the European Communities, except for the settlement of specific cases, as soon as possible.
§ 13. The competent Belgian authority, together with the competent authorities of the other States and the Commission of the European Communities, shall continuously follow the procedure for cooperation provided for in this article. The competent Belgian authority shall communicate the experiences carried out to the competent authorities of the other States and to the Commission of the European Communities, in order to improve cooperation and to develop, where appropriate, regulations.
§ 14. The above provisions do not affect the fulfilment of broader obligations with respect to the exchange of information that would result from legal acts other than Directive 77/799/EEC, last amended by Council Directive 2004/56/EC of 21 April 2004 and 2004/106/EC of 16 November 2004. »
Art. 3. In section 338bis of the Income Tax Code 1992, inserted by the Act of 17 May 2004, the following amendments are made:
1° it is inserted a § 1^er, as follows:
« § 1^er. This article regulates the exchange of information within the framework of the law of 17 May 2004 transposing in Belgian law the Directive 2003/48/EC of 3 June 2003 of the Council of the European Union on the taxation of the income of savings in the form of payment of interest and amending the Code of Taxes on income 1992 in respect of movable pre-payment. »
2° §§ 1^er2 and 3, respectively, become §§ 2, 3 and 4.
3° to § 2, which becomes § 3, the words "at § 1^er"are replaced by the words "at § 2".
4° to § 3, which becomes § 4, the words "by §§ 1^er and 2" are replaced by the words "by paragraphs 2 and 3".
Art. 4. The following amendments are made to section 15 of the Act of 17 May 2004:
1° to § 1^er, the words "excluding the provision referred to in § 2" are replaced by the words "excluding the provisions referred to in §§ 1^erbis and 2";
2° it is inserted a § 1^erbis, as follows:
« § 1^erbis. Article 12 of this Act comes into force on the date of publication to the Belgian Monitor of the Act of 20 June 2005, amending the Income Tax Code 1992 and the Code of Taxes assimilated to the stamp on mutual assistance of the competent authorities of the Member States in the field of direct taxes and taxes on insurance premiums. »;
3° the opening sentence of § 2 is replaced by the following sentence:
“§2. Article 338bis, § 2, paragraphs 1^er to 3, of the Income Tax Code 1992, as inserted by section 13 of this Act and amended by the Act of 20 June 2005, amending the Income Tax Code 1992 and the Code of Taxes assimilated to the Mutual Assistance Stamp of the competent authorities of the Member States in the field of direct taxes and insurance premium taxes, comes into force on the first of the following dates:".
CHAPTER III. - Amendments to the Code of Taxes assimilated to the stamp
Art. 5. Section 182 of the Code of Taxes assimilated to the stamp, repealed by the Act of 13 August 1947 and restored by the Act of 17 June 2004, is replaced by the following provision:
"Art. 182. § 1^er. This article regulates the mutual assistance of Belgium with the Member States of the European Union in the field of the annual tax on insurance contracts.
§ 2. For the purposes of this article, the following means:
(a) "competent Belgian authority": the Minister of Finance or the person or service authorized by the Minister of Finance to exchange information with the competent authority of another Member State of the European Union;
(b) "State": a Member State of the European Union;
(c) "tax": the tax on insurance premiums as defined in section 1^er of Council Directive 77/799/EEC of 19 December 1977 concerning the mutual assistance of the competent authorities of the Member States in the field of direct taxes and taxes on insurance premiums.
§ 3. The competent Belgian authority may request the competent authority of another State to provide it with information that may enable it to properly establish the tax with respect to a specific case.
Where it is required by the competent authority of another State to provide the information that may enable it to properly establish the tax in respect of a specific case, the competent Belgian authority is required to give a favourable response to that request, unless it appears that the competent authority of the requesting State has not exhausted its own usual sources of information, which it could have used in this case to obtain the information requested.
In order to communicate the information referred to in the preceding paragraph, the competent Belgian authority shall, as appropriate, conduct the necessary research.
To obtain the requested information, the competent Belgian authority, or the Belgian administrative department seized by the latter, proceeds as if it were acting on its own initiative or at the request of another Belgian authority.
§ 4. The competent Belgian authority shall provide, for categories of cases determined under the consultation procedure referred to in § 12, to the competent authority of another State, without prior and on a regular basis, all information that may enable it to properly establish the tax.
§ 5. The competent Belgian authority shall communicate, without prior request, all information which may permit the correct establishment of the tax, of which it is aware, to the competent authority of any other State interested in the following situations:
(a) the competent Belgian authority has reasons to assume that there is an abnormal tax reduction or exemption in the other State;
(b) a taxpayer obtains, in Belgium, a reduction or exemption from the tax that should result in an increase in the tax or a levy in the other State;
(c) transactions between a Belgian taxpayer and a taxpayer of another State through a permanent establishment of these taxpayers or through one or more third parties, located in one or more other countries, are likely to result in a decrease in the tax in Belgium, the other State or both;
(d) the competent Belgian authority has reasons to assume that artificial transfers of profits within groups of enterprises result in a decrease of the tax in another State;
(e) following the information provided by the competent authority of another State, information is collected in Belgium that may be useful to the establishment of the tax in that other State.
The competent Belgian authority may, as part of the consultation procedure referred to in § 12, extend the exchange of information provided for in paragraph 1^er cases other than those referred to in them.
The competent Belgian authority may, in any other case, communicate to other States, without prior request, information that may permit the correct establishment of the tax, of which it is aware.
§ 6. The competent Belgian authority shall transmit the information referred to in §§ 2 to 5. If the provision of this information is encountered by obstacles or is denied, the competent Belgian authority shall promptly inform the competent authority of the other State, indicating the nature of the obstacles or reasons for its refusal.
§ 7. For the purposes of the preceding provisions, the competent Belgian authority and the competent authority of the State to whom the information is intended may agree, within the framework of the consultation procedure referred to in § 12, to authorize the presence in Belgian territory of agents of the tax administration of the other State. The terms and conditions for the application of this provision are determined under the above-mentioned consultation procedure.
§ 8. All information which the Belgian State is aware by application of this article is kept secret in the same way as the information collected under its legislation. In any case, this information:
- are accessible only to persons directly affected by the establishment of the tax or by the administrative control of the tax establishment;
- shall be disclosed only on the occasion of judicial proceedings or proceedings involving the application of administrative sanctions, initiated for or in relation to the establishment or control of the establishment of the tax, and only to persons directly involved in such proceedings; it may, however, be referred to in public hearings or judgments, if the competent authority of the State providing the information does not object to it at the time of their initial transmission;
- are not, in any case, used in any way other than for tax purposes or for the purposes of judicial proceedings or proceedings involving the application of administrative sanctions, incurred for or in relation to the establishment or control of the establishment of the tax.
However, where legislation or administrative practice establish, for domestic purposes, a stricter secret obligation, the competent Belgian authority is not required to provide information if the State to whom it is intended does not undertake to comply with this stricter obligation.
The competent Belgian authority may, however, permit the use of this information for other purposes in the State which receives it when, according to Belgian law, their use is possible, in Belgium, for similar purposes in the same circumstances.
Where the competent Belgian authority considers that the information it has received from the competent authority of another State may be useful to the competent authority of a third State, it may transmit it to the competent authority of a third State with the agreement of the competent authority which has provided it. Where the competent authority of a State considers that the information it has received from the competent Belgian authority may be useful to the competent authority of a third State, the competent Belgian authority may consent to the transmission of this information.
§ 9. This article does not impose on the Belgian State the obligation to conduct research or transmit information when the conduct of such investigations or the collection of the information in question is contrary to its legislation or administrative practices.
The transmission of information may be denied in the event that it would lead to disclosure of a commercial, industrial or professional secret or a commercial process, or information that would be contrary to public order.
The competent Belgian authority may refuse the transmission of information when the requesting State is unable to provide information of the same nature for reasons of fact or law.
§ 10. At the request of the competent authority of another State, the competent Belgian authority shall notify the consignee of all acts and decisions of the administrative authorities of the requesting State and concerning the application in its territory of the law relating to the tax.
Notification requests indicate the name, address and any other information that may facilitate the identification of the recipient and mention the act or decision to be notified.
The notification shall take place according to the Belgian law rules in force for the notification of similar acts.
The competent Belgian authority shall promptly inform the requesting authority of the other State of the follow-up to the request for notification and, in particular, the date on which the decision or act was notified to the consignee.
§ 11. Where the situation of one or more taxpayers has a common or complementary interest for the Belgian State and one or more States, the competent Belgian authority may agree with the competent authority of another State or other States to carry out simultaneous controls, each in the territory of its own State, with a view to exchange the information obtained, whenever it appears more effective than controls that would be carried out only in one State.
The competent Belgian authority independently identifies taxpayers for whom it intends to propose simultaneous control. It informs the competent authorities of each other State concerned of cases which, according to it, should be subject to simultaneous controls. It motivates its choice, to the extent possible, by providing the information that led to this decision. It indicates the time frame for these controls to be carried out.
When a request for simultaneous control is submitted, the competent Belgian authority decides whether it wishes to participate. It shall give to the competent authority who has sent the request confirmation of its acceptance or shall notify the competent authority of its reasoned refusal to perform such control.
The competent Belgian authority designates a representative to lead and coordinate control.
§ 12. For the purpose of applying the provisions of this Article, the competent Belgian authority shall, if any within a committee, participate in consultations between:
- the competent Belgian authority and the competent authority of another State, at the request of one of them, in the case of bilateral matters;
- the competent Belgian authority, the competent authorities of the other States and the Commission of the European Communities, at the request of a competent authority of one or more States or the Commission of the European Communities, to the extent that it is not exclusively bilateral issues.
The competent Belgian authority may communicate directly with the competent authority of one or more States. The competent Belgian authority may, in agreement with the competent authority of one or more States, allow the authorities designated by it to take direct contact for specific cases or for categories of cases.
When the competent Belgian authority and the competent authority of another State have agreed on bilateral issues relating to the tax, they shall inform the Commission of the European Communities, except for the settlement of specific cases, as soon as possible.
§ 13. The competent Belgian authority, together with the competent authorities of the other States and the Commission of the European Communities, shall continuously follow the procedure for cooperation provided for in this article. The competent Belgian authority shall communicate the experiences carried out to the competent authorities of the other States and to the Commission of the European Communities, in order to improve cooperation and to develop, where appropriate, regulations.
§ 14. The above provisions do not affect the fulfilment of broader obligations with respect to the exchange of information that would result from legal acts other than Directive 77/799/EEC, last amended by Council Directive 2004/56/EC of 21 April 2004 and 2004/106/EC of 16 November 2004. »
Art. 6. Section 212, paragraph 2, of the same Code, inserted by the Act of 4 August 1978 and amended by the Act of 17 June 2004, is replaced by the following provision:
"The officials of the administration of the value-added tax, registration and domains shall remain in the performance of their duties when communicating to other government departments, including prosecutors and court offices and all courts, communities, regions and public institutions or bodies, the information that is necessary for these services, institutions or bodies to ensure the enforcement of the legal or regulatory provisions they are responsible for. »
CHAPTER IV. - Miscellaneous provision
Art. 7. In the opening sentence of Article 3, § 1^er, 7°, c, of the law of 17 May 2004 transposing in Belgian law the Directive 2003/48/EC of 3 June 2003 of the Council of the European Union on the taxation of the income of savings in the form of interest payments and amending the Code of Taxes on the income of 1992 in respect of movable pre-payments, the words "vised at points a and b" are deleted.
CHAPTER V. - Entry into force
Art. 8. Sections 2 to 6 come into force on the day of the publication of this Act to the Belgian Monitor.
Article 7 comes into force on the date of the entry into force of Article 3 of the Law of 17 May 2004 transposing in Belgian law the Directive 2003/48/EC of 3 June 2003 of the Council of the European Union on the taxation of the income of savings in the form of interest payments and amending the Code of Taxes on Income 1992 in respect of movable pre-payments.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 20 June 2005.
ALBERT
By the King:
Deputy Prime Minister and Minister of Finance,
D. REYNDERS
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
____
Notes
(1) Parliamentary references:
Documents of the House of Representatives:
51-1735-2004/2005:
Number 1: Bill.
No. 2: Amendments.
Number three: Report.
No. 4: Text adopted by the commission.
No. 5: Text adopted in plenary and transmitted to the Senate.
Full report: 2 June 2005
Documents of the Senate:
3-1221.-2004/2005
No. 1: Project not referred to by the Senate.