22 AVRIL 2003. - An Act to amend the Financial Operations and Financial Markets Act of 4 December 1990 to create a new class of collective investment organizations, known as a private pricaf, and to make various tax provisions (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and sanctioned the following:
CHAPTER I^er. - General provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER II. - The private pricaf
Art. 2. Article 2 of the Act of 4 December 1990 on financial transactions and financial markets, § 1^er, replaced by the Act of 10 March 1999, is completed by paragraph 4, which reads as follows:
"For the purposes of section 105, paragraph 1^er, 1°, d) , the King determines:
1° what should be heard by private investors;
2° the conditions and terms and conditions for private investors to yield financial instruments, issued by the investment agency. »
Art. 3. The following amendments are made to section 105 of the Act:
1 ° paragraph 1^er, 1°, replaced by the Act of 12 December 1996 and amended by the Act of 10 March 1999, is replaced by the following provision:
"1° the Belgian organizations listed below, whose purpose is the collective investment of financial means:
(a) investment agencies that collect their financial resources from the public, in Belgium or abroad, and that belong to one of the categories referred to in Article 108, paragraph 1^er1° or 2°; or
(b) investment agencies that collect their financial resources at least in part from the public, in Belgium or abroad, and that fall within the category referred to in Article 108, paragraph 1^er, 3°, or
(c) investment agencies that collect their financial resources, in Belgium or abroad, exclusively from institutional or professional investors acting on their own behalf, whose securities can only be acquired by these investors and who belong to the category referred to in Article 108, paragraph 1^er, 3°, or
(d) investment agencies that collect their financial resources, in Belgium or abroad, exclusively from private investors acting on their own behalf, whose securities may only be acquired by such investors or other investors in the circumstances specified by the King, and that are in the class referred to in Article 108, paragraph 1^erFour. »;
2° Paragraph 2 is replaced by the following provision:
"They are referred to as "investment agencies" for the purposes of this Act and its enforcement orders. »
Art. 4. Article 108, paragraph 1^erthe same Act, replaced by Act of 5 August 1992 and amended by Act of 12 December 1996, are amended as follows:
1° the word "three" is replaced by the word "four";
2° it is supplemented by a 4°, which reads as follows:
"4° fixed-number investment organizations, which have the statutory form, constituted for a specified period and whose exclusive purpose is the collective investment in authorized financial instruments issued by unlisted companies. »
Art. 5. In Book III, Title I^er, Chapter I, of the same law, a "Section 5. - Of private pricaf" and articles 119decies and 119undecies, as follows, are inserted:
"Art. 119decies. By fixed capital investment corporation, as defined in section 108, paragraph 1^er, 4°, referred to as "private pricaf", the investment company consisting of a single limited partnership, a limited partnership by shares or anonymous company, for a maximum of 12 years and is listed on the list of private pricafs referred to in section 136ter, § 2.
As soon as it is established, it may not carry out any activities other than those described in section 105, paragraph 1^er, 1°, d) , and it cannot possess other assets other than those necessary for the realization of its object.
When incorporated as an anonymous corporation, day management is delegated to a single management corporation that is not a director. When incorporated as a single-shared partnership or a share-sponsored partnership, this management company is the only sponsoring partner. The King determines what to hear by management society.
Art. 119undecies. § 1^er. The private pricaf is subject to the Corporate Code, if it is not derogated by this book and its enforcement orders.
§ 2. By derogation from Article 78 of the Code of Societies, the social reason for the private pricaf and all documents emanating from it, must contain the words "private pricaf of Belgian law" or these words must immediately follow the name of the society.
§ 3. By derogation from Article 93, paragraph 2, of the Code of Companies, the private pricaf shall in all cases establish annual accounts according to the rules established by the King under Article 92, § 1^er, this code.
§ 4. By derogation from section 97 of the Corporate Code, the private pricaf shall in all cases file its annual accounts with the National Bank of Belgium, in accordance with the terms and conditions arising out of sections 98 and following of this Code.
§ 5. By derogation from section 141, 1 and 2 of the Code of Companies, the private pricaf must in any case entrust control of its annual accounts to one or more commissioners, as it arises from the application of section 142 of that Code. By derogation from article 144, paragraph 1^er, 6°, of this Code, the Commissioner (s) having been aware of any statutory provisions relating to the status as an investment agency, cannot (may) in any case omit the mention of such offences which must be circumstantial and indicate the breaches. In the cases set by the King, the Commissioner (s) sends a certified copy of the report to the Banking and Financial Commission.
§ 6. Derogation from articles 184, paragraph 1^er, 187 and 193, of the Code of Companies, the method of liquidation and designation of the liquidator (s) is in all cases fixed by statute, the investment company shall no longer make new investments in companies not listed after the liquidation report and, in all cases, annual accounts shall be established during liquidation according to the rules established by the King in accordance with Article 92, § 1^er, this code. »
Art. 6. The following amendments are made to section 122 of the Act:
1° to § 1^erParagraph 1^erthe words " referred to in Article 108, paragraph 1^er, 1° and 2°, are inserted between the words "Investment agencies" and the words "are held";
2° 1^erter, to read:
« § 1^erter. Investment agencies referred to in Article 108, paragraph 1^er, 4°, place in financial instruments issued by companies not listed according to the definition given therein and according to the conditions and modalities fixed by the King. »;
3° § 2 is supplemented by the following paragraphs:
“The investment bodies referred to in § 1^erter, can always, incidentally or temporarily:
1° hold term investments of up to 6 months or cash;
2° hold listed titles, however:
(a) that they already hold these securities at the time of the application for listing on a stock exchange or other organized and public securities market;
(b) that these securities have been acquired by exchange of non-listed securities with the exception of its own securities;
3° in the context of coverage transactions, negotiating derivative financial instruments, whether listed or not, on underlying material or financial assets, whether listed or not.
The King defines what is necessary to hear by " incidentally or temporarily. »
Art. 7. In Book III, Title I, Chapter II, of the Act, in Section VII, inserted by the Act of 12 December 1996, an article 136ter, as follows, is inserted:
"Art. 136ter. § 1^er. Except for articles 122, § 1^erter and § 2, paragraphs 3 and 4, 123, paragraph 1^er and paragraph 2, 3, 126 and of this provision, the provisions of Chapter II shall not apply to investment bodies referred to in section 105, paragraph 1^er, 1°, d) .
§ 2. Investment agencies referred to in section 119decies are required, before starting their activities as a private pricaf, to be registered with SPF Finance on the list of private pricafs. The King defines the registration conditions. Each document issued by the FPS Finance to confirm this registration and each document that refers to this registration in order to carry out the operations of the investment organization must mention that the registration does not include any appreciation of the opportunity and quality of the transactions, or of the situation of the investment organization.
§ 3. The SPF Finance makes available to the public, on the basis of the data it received during the registration, information on the identity of companies that are registered or removed from the list of private pricafs and their management company. »
Art. 8. The following amendments are made to section 143 of the Act:
1° to § 1^eramended by the Acts of 5 August 1992, 28 December 1992, 16 April 1997 and 10 March 1999, the words "at articles 114, 118 and 119quinquies" are replaced by the words "at articles 114, 118, 119quinquies and 119decies";
2° to § 2, as amended by the Act of 16 April 1997, the words "and section 123 of the Royal Decree of Enforcement of the Tax Code on Income 1992" are inserted between the words "the same Code" and the words "are not applicable";
3° § 4, inserted by the law of 16 April 1997, is replaced by the following provision:
“§4. For the application of Article 192, § 1^erParagraph 1^er, from the Income Tax Code 1992, the condition attached to any income of the shares or shares of investment companies referred to in section 119decies , is deemed to be fulfilled when these companies place all their assets in:
1° shares or shares whose potential revenues are likely to be deducted entirely from the profits under Articles 202, § 1^erand 203 of the above-mentioned Code; or
2° shares or shares of investment companies referred to in Article 119decies; or
3° incidental or temporary investments referred to in Article 122, § 2, paragraph 3, 1°, provided that, per calendar day, these investments do not exceed 10% of the total of the balance sheet, on the first day of the taxable period, established under the common law accounting rules, increased or decreased the increases or decreases of the released capital, taxable surpluses or lesser-values realized or dividends paid and accounted to date »;
4° § 5, inserted by the law of 16 April 1997, is replaced by the following provision:
“§ 5. §§ 1^er and 2 are not applicable for the taxable period in which an investment corporation referred to in section 119decies does not comply with the following provisions:
(1) the provision referred to in § 4;
2° one or more statutory rules arising from the specific character of this company as an investment agency.
For the purposes of paragraph 1^erreserves previously constituted under the regime referred to in §§ 1^er and 2, are considered to be:
1° of the reserves taxed to the extent that the investment company determines that they come from surplus-values or dividends collected from investments referred to in § 4, 1° and 2°;
2° of the exempt reserves for the balance and to the extent that the amount of these reserves is increased and maintained to one or more separate accounts of the liability and where it is not used as a basis for calculating the annual allocation of the legal reserve or any remuneration or attributions;
3° of the profits obtained during this taxable period in the event and to the extent that the 2° conditions cease to be met.
The reserves referred to in paragraph 2, 2°, are also considered a benefit obtained during the tax period in which the companies referred to in section 119decies are removed from the list of private pricafs referred to in section 136ter, § 2, without prejudice to the application of section 210, § 1^er5° of the Income Tax Code 1992.
The SPF Finance may remove the company from the list of private pricafs referred to in section 136ter, § 2, in the cases fixed by the King or in the event of a violation of statutory rules established by the King. Radiation implies that the company is no longer considered an investment company for the application of Article 2, 5°, (f) , of the Income Tax Code 1992. The SPF Finance reports radiation by a recommended letter addressed to the company's headquarters. An appeal is appealed against a delisting decision in accordance with the common administrative law procedure.
The offences referred to in this subsection may be determined by all evidence referred to in section 340 of the Income Tax Code 1992. »;
5° 1 § 6, as follows, is inserted:
“§ 6. The 90% threshold of section 203, paragraph 2, of the Income Tax Code 1992, for the granting of the income plan permanently taxed to the dividends from fixed capital corporations approved by the Banking and Financial Commission for the investment in non-listed shares, is expected to be reached when these investment companies have distributed the net proceeds under Article 57 of the Royal Decree of 18 April 1997 relating to the non-listed investment organizations »;
6° 1 § 7 is inserted as follows:
“§ 7. Article 203, § 1^erParagraph 1^er, 2°, of the Income Tax Code 1992, does not apply to dividends distributed by investment companies referred to in section 119decies , however and to the extent that income comes from surplus-values made on investments referred to in § 4, 1° and 2° or dividends derived from these investments. »;
7° 1 § 8, as follows, is inserted:
“§ 8. For the application of §§ 4 and 7, investment companies which, in a Member State of the European Union, meet the characteristics of an investment agency within the meaning of Article 108, paragraph 1^er, 4°, and whose financial instruments are held privately in accordance with the similar provisions of this Member State with respect to the public appeal to savings, are assimilated to the investment companies referred to in Article 119decies. »
Art. 9. Article 150, § 2, paragraph 1^erthe following amendments are made:
1° to 3°, amended by the law of 12 December 1996, the words "136bis, § 2" are replaced by the words "136bis, § 2, 136ter, § 2";
2° 1°, as follows, is inserted:
"4° those who have made transfers of financial instruments issued by investment agencies in ignorance of the provisions of this book or its enforcement orders. »
CHAPTER III. - Miscellaneous provisions
Art. 10. In article 211, of the Income Tax Code 1992, replaced by the Act of 6 August 1993, § 1^er, paragraph 3, inserted by the Act of 21 December 1994 and replaced by the Act of 16 April 1997, is supplemented by the words "or which is registered with SPF Finance on the list of private pricafs. »
Art. 11. In section 122 of the Code of Registration, Mortgage and Registry Rights, replaced by the Act of April 14, 1965, the words "and 119quinquies" are replaced by the words ", 119quinquies and 119decies" in paragraph 1^er, 4°, inserted by the law of 4 December 1990 and amended by the law of 28 December 1992.
Art. 12. The provisions of this Act shall enter into force at the same time as those of the Royal Decree that is enforced by this Act. This Royal Decree must be taken before 15 May 2003.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 22 April 2003.
ALBERT
By the King:
Minister of Finance,
D. REYNDERS
Seal of the state seal:
Minister of Justice,
Mr. VERWILGHEN
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Note
(1) Session 2002-2003.
House of Representatives.
Documents. - Bill 50-2349 - No. 1. - Summary, Developments, Bill, Coordinated text, 50-2349 - No. 2. - Report, 50-2349 - No. 3. - Text adopted in plenary and transmitted to the Senate, 50-2349.
Senate.
Documents. - Project referred to by the Senate, 2-1587 - No. 1. - Evocation, 2-1587 - No. 2. - Report, 2-1587 - No. 3. - Amendments filed after approval of the report, 2-1587 - No. 4. - Overall vote: not varies, 2-1587.