In a recent ruling, the application of the Belgian anti-abuse provision laid down in article 344(1) of the Belgian Income Tax Code (BITC) was rejected, on the grounds that the taxpayers had not implemented themselves all the steps of an arrangement.
The GAAR of the EU Anti-Tax Avoidance Directive (2016/1164) (ATAD) Directive has a wider personal scope (“ratione personae”) than Art. 344 (1) BITC, given that it is not subject to the condition that the taxpayer (claiming a tax advantage) must be a participant to all the steps of an arrangement.
Belgium did not deem it necessary to enact new statutory provisions to implement the ATAD GAAR on the grounds that the objective of the ATAD GAAR was already achieved under the existing domestic general anti-abuse rule (art. 344, §1 BITC). This being said, the domestic general anti-abuse rule (art. 344,§1 BITC) must be interpreted in light of the wording and the purpose of the ATAD GAAR (Directive compliant interpretation) in the field of corporation tax as from 2019. This principle of Directive compliant interpretation could lead to a broader interpretation of the personal scope of art. 344,§1 BITC by Belgian courts (at least for legal acts carried out after 2019 in the field of corporation tax).
Read the interview of Denis-Emmanuel Philippe in L’ Echo.
