On 19 February 2019, the Constitutional Court rendered decision 138/2019 on the issue whether the annual securities account tax violates the articles 10 and 11 (non-discrimination) and article 172 (legality principle) of the Belgian Constitution. Details of the case are summarized below.
(a) Facts. At the end of 2017, the Belgian legislator introduced an annual tax of 0.15% on Belgian and foreign securities accounts. The main purpose is to tax wealthy (Belgian) individuals. The tax is due if, during the reference period, the total average value of the securities accounts of an individual exceeds EUR 500,000. The reference period runs from 1 October to 30 September.
(b) Issue. Various taxpayers found the securities account tax discriminatory and initiated a procedure before the Constitutional Court to have the tax nullified.
c) Decision. The Constitutional Court ruled in favor of the taxpayers because, as argued by the taxpayers, there is not reasonable justification for the fact that certain financial instruments (such as options, swaps or real estate certificates) and registered shares are excluded from the tax. Also the fact that the tax can be avoided by registering the securities account in the name of several holders creates a discriminatory situation.
Hence, the Court nullified the tax. However it only decided so for reference periods starting on or after 1 October 2019. The Belgian state may collect the tax for the first reference period which ran from 1 January 2018 to 30 September 2018.
Lexque 