A programme-law published on 31 December 2021 in the Belgian Gazette provides a new special tax regime in Belgium for "impatriate" employees, directors and researchers and, as a result, the abolition (after a transitional period) of the current special tax regime for foreign executives (as set out in the Tax letter of 8 August 1983).
Since the new regime came into force on 1 January 2022, special attention is required on the tax (and social security) consequences of these changes on current foreign executives as well as foreign staff expected to start working in Belgium after 1 January 2022.
Scope of application
This new regime, the application of which is limited to 8 years (5 years, extendable by 3 years) is intended for "impatriates" (employees and directors) and "impatriate researchers" (employees only) who are :
Either, recruited directly abroad by:
- a Belgian company; or
- a Belgian establishment of a foreign company; or
- by a non-profit association.
Or, made available by a foreign company that is part of a multinational group to:
- one or more Belgian companies; or
- one or more Belgian establishments of a foreign company belonging to the same multinational group; or
- a non-profit association
The notion of a multinational group is defined as any group that includes two or more companies that are resident in different jurisdictions (e.g. a group consisting of a Belgian company and a foreign company), or that includes a company that is resident in one jurisdiction and is liable to taxes in another jurisdiction on activities carried out through a Belgian or foreign establishment.
For the directors, this new regime only applies when the director is (1) an individual (2) exercising a mandate or similar functions and (3) responsible for the day-to-day management of the company or performing a function or activity referred to in Article 32, § 1, 2° ITC, excluding individuals working in their capacity of director within their own company, of which they are the founder or co-founder or of which they hold shares or stocks representing 30% or more of the share capital of this company.
On the other hand, impatriate researchers must (1) be employed in a laboratory or company engaged in one or more R&D programmes and (2) carry out (at least 80% of the working time) scientific, fundamental, industrial or technical research activities.
In addition, in order to be eligible, impatriate researchers must have a doctorate or a master's degree in specific scientific fields (restrictive list).
Conditions
In terms of conditions, the new tax regime only applies to impatriates who
(1) have a gross annual Belgian income (before deduction of social security contributions) of at least EUR 75,000.00 and
(2) who, during the 60 months prior to taking up their employment (in Belgium):
- have not been Belgian tax residents; and
- did not reside at a distance of less than 150 km from the Belgian border (this excludes persons from Luxembourg, the border areas with France, the Netherlands and Germany and certain persons from the south of the United Kingdom); and
- have not been liable to Belgian taxes on Belgian professional sourced income as non-resident.
With regard to the annual threshold of EUR 75,000 gross (which does not apply to impatriate researchers), all components of the Belgian remuneration are to be taken into account with the exception of termination payments, compensation for temporary loss of earnings (replacement income) and reimbursements of the employer's own expenses (hence, also excluded are expenses reimbursed under the new impatriate regime). In case of foreign source income (e.g. salary split), the threshold is calculated only on the gross Belgian source income.
This annual threshold is however prorated (per calendar day) for the year of arrival in Belgium, the departure year, the year of termination of the tax regime, in case of a change of employer as well as in case of interruption of the professional activity.
Tax (and social security) effects of the impatriate and impatriate researcher regime
Below is an overview of the main tax (and social security) effects of the new regime (when all conditions are met):
- Contrary to the current regime (fiction of non-residence established by a tax circular), the new regime is integrated in the Income Tax Code 1992 (new Articles 32/1 & 32/2 ITC 92) and applies both to Belgian tax residents (with all the resulting tax obligations) and to non-residents (for impatriates/impatriate researchers who maintain their tax residence abroad). The travel percentage rules (as set out in the Tax letter of 1983) are abandoned and the tax treatment of the portion of the remuneration relating to working days (physically performed) abroad will depend on the applicable tax treaties (e.g., the impatriate/impatriate researcher who is a Belgian tax resident will be protected under the tax treaties concluded by Belgium).
- The notion of (tax-exempted) costs proper to the employer remains key and is (still) based on a distinction between recurring and non-recurring expenses related to the expatriation in Belgium:
- Recurring expenses: the new regime introduces a lump sum for recurring expenses capped at 30% of gross remuneration, with an absolute annual ceiling of EUR 90,000.00 (reachable as from a Belgian gross annual income of EUR 300,000). The excess is considered as taxable income.
These expenses can either be borne directly by the employer (without constituting a benefit in kind for the impatriates) or be reimbursed to the impatriate who incurred the costs.
The remuneration referred to corresponds to the above-mentioned threshold of EUR 75,000.00 gross. Similarly, a pro rata is also applied to this annual ceiling of EUR 90,000 for the year of arrival in Belgium, the year of departure and the year in which the tax regime expires, as well as in the event of a change of employer (but not in the event of an interruption in the professional activity).
This lumpsum does not require proof but should be contractually agreed in the impatriate's agreement/contract.
- Non-recurring expenses: certain limited expenses (moving expenses, expenses during the first six months related to the fitting out of the home in Belgium and the costs of private or international schools) can also be paid directly by the employer or be reimbursed (within certain limits) to the impatriate. These expenses require however supporting documents.
- The above-mentioned expenses can be cumulated with the reimbursements (lumpsum or on actual basis) of other usual costs proper to the employer (representation expenses, etc.).
- It goes without saying that these expenses and/or reimbursements must be correctly reported in the tax form 281.10 or 281.20 (and the corresponding individual account).
- In addition, the employer will have to establish each year (at the latest by 31 January of the year following the year of application of the new tax regime) a list of names of the impatriates.
- At this stage, it is unknown whether the social security treatment of the employer's proper costs will be aligned with the above-mentioned new tax treatment.
Application process and formalities
With respect to formalities, the application of the new regime presupposes the submission of an application by the employer within a period of 3 months (from the start date of employment in Belgium or the expiry of the initial 5-year period).
As part of this application, a formal approval from the impatriate or impatriate researcher must be attached to the application, as well as a residency certificate issued by the State of residence for non-resident impatriates/impatriate researchers. The latter will have to be provided to the Belgian tax authorities each year.
The Belgian tax authorities will have a period of 3 months (from the receipt of the application) to issue a written decision.
In addition, the published programme-law provides the possibility to maintain the application of the tax regime even in case of a change of employer, provided that certain conditions continue to be met (conditions relating to the employer, the income threshold and the duration of the tax regime) and that a formal request from the new employer is submitted (following the same formalities and deadlines).
Entry into force & transition period for current foreign executives
The new regime came into force on 1 January 2022.
A transitional period has however been introduced for the current foreign executives. Those who benefit less than 5 years from the (current) special tax regime will have two choices:
Opting for the new regime (provided that the conditions of the new regime are met on the basis of the first assignment in Belgium) for the remaining period (maximum 8 years to be calculated from the first entry into service in Belgium). In this case, the application must be submitted by 31 July 2022 at the latest.
If the foreign executive does not opt for the new regime or the application thereof is refused by the Belgian tax authorities, a transitional period of two years will, in principle, be introduced (via an adaptation, announced in the parliamentary works, of the tax circular of 8 August 1983).
In both cases, as well as for current long-term foreign executives (i.e. who have benefited already for more than 5 years from the special tax regime), we highly recommend to assess the tax (and social security) changes in due time and to anticipate both the new formalities with respect to the tax residency and the increased payroll formalities.
