Understanding and opinions so far
Belgian tax authorities have created a new Belgian tax regime for inpatriates and inpatriate researchers (hereafter the ‘inpat regime’). The underlying tax bill has been published on 27 December 2021 and introduces two new articles in the Belgian Tax Code of 1992 (hereafter BTC).
In order to clarify their interpretation of this new law, Belgian tax authorities have published an extensive commentary on this new system (Circular 2022/C/47 of 6 May 2022 on the regulation introducing a special tax regime for inpatriates and inpatriate researchers).
The new regime is essentially intended to attract qualified personnel from abroad to Belgium. Although underlying conditions slightly differ from one another, it is also replacing the special tax regime for foreign executives and researches in Belgium of 1983 (hereafter ‘the old special tax regime’), that will cease to exist on 31 December 2023.
In essence, the new system offers the benefit that, for a certain period of time, a special regime can be applied with regard to “costs proper to the employer” that can be granted free of Belgian tax and social security contributions.
Even though, as you will appreciate, some aspects still remain to be further clarified, the purpose of this article is to give an overview of what has been confirmed so far, as well as our understanding and opinions in that respect.
Article 32/1 §1 BITC stipulates that the reimbursement of certain expenses by the employer or company can be considered as costs proper to the employer on behalf of employees or directors.
For the purpose of the new inpatriate regime, a director is defined as a natural person who holds a mandate or similar function as referred to in article 32, §1, 1° BITC, or a function as referred to in article 32, §1, 2° BITC. The regime can only be applied by directors who are involved in day-to-day management of the company. Therefore, directors who merely hold a seat in the board of directors without getting involved in daily management activities do not qualify.
Natural persons that have (co-)founded the company, or hold a large part of the shares (representing 30% or more of the capital) are excluded as well from the new regime.
Note that a director can only apply for the new inpatriate regime and cannot apply for the new regime for inpatriate researchers.
The special tax regime requires the individual at hand to be either recruited directly from abroad or posted from abroad.
The term ‘inpatriate’ refers to an individual who is recruited directly from abroad by a Belgian company, a Belgian establishment of a foreign company or a Belgian non-profit organisation with legal personality (as listed in the Belgian corporate law) in order to carry out a renumerated activity taxable in Belgium, or an individual who is posted by a foreign company that is part of a multinational group to one or more domestic Belgian companies, organisations or establishments of foreign companies.
Please be aware that the notion of ‘Belgian establishment’ described above is based on Belgian domestic tax law (article 229 BITC) and not on definitions as stipulated in double tax treaties. Furthermore, the definition of ‘Belgian establishments’ tends to be broader than that of a ‘Permanent establishment’ according to double tax treaties. Therefore, a legal entity which would have a Belgian establishment according to Belgian domestic tax law may be entitled to benefit from the inpat regime in the hands of its employees or directors without necessarily becoming taxable in Belgium for corporate tax purposes (in absence of permanent establishment).
The Circular specifies that for the purposes of the regime, ‘multinational group’ means any group that:
- includes two or more companies, residents of different jurisdictions or
- includes an enterprise which is resident in one jurisdiction and subject to tax in another jurisdiction in respect of activities carried out through a Belgian or foreign permanent establishment.
We can already identify substantial differences between the inpat regime and the old special tax regime. Among others, the fact that it can be applied to renumerated activities on behalf of non-profit organisation with legal personality is completely new. Combined with the fact that the inpat regime, as opposed to the old special tax regime, does not require any formal qualification unless the special tax regime for inpatriate researchers is applied for, it could be argued that the inpat regime could for example be requested by soccer clubs on behalf of inbound foreign players, provided that other conditions (see later) are met.
A work relationship has to be established between the inpatriate and an employer/company in Belgium. This relationship can be proven with an employment contract (for employees) or a mandate (for directors).
To appreciate whether an individual can be regarded as an ‘inpatriate’, the Belgian law makers have included objective conditions to be fulfilled during an uninterrupted period of 60 months preceding the beginning of activities in Belgium.
The 60 months are calculated on a date-to-date basis (for example: the start date of the activity in Belgium is 23 April 2023. The reference period of 60 months starts on 23 April 2018).
The individual may not, at any point in the latter 60-month period:
- have been considered as a Belgian tax resident.
It should be noted that the notion of Belgian tax resident is also to be assessed on the basis of Belgian domestic tax law and not according to the definition as provided by the double tax treaties.
As a result, there is a risk of an individual being considered as a Belgian resident under Belgian tax law, although that same individual should be considered a Belgian tax non-resident for double tax treaty purposes.
This risk however remains rather theoretical as the residency criteria under Belgian domestic tax law and OECD principles are quite similar
- have been subject to Belgian non-resident income tax (NRI) on his or her professional income.
This condition only targets professional income that is subject to the Belgian non-resident income tax on account of the inpatriate (researcher). Consequently, the income subject to NRI that is not professional income (for example, real estate income), professional income not subject to Belgian non-resident taxation or professional income earned by the partner (in Belgium) should not be taken into account to determine whether this condition is met.
- have lived less than 150km away from the Belgian border.
The last circular letter from Belgian tax authorities does not provide any detailed explanation on this condition other than that it was introduced to avoid potential abuse, given that Belgium is a small and landlocked country.
Whether this distance should be considered as the crow flies or via a normal route is not further clarified.
The example developed in the circular letter only confirms that if a given individual has lived in different locations during the reference period, the regime cannot be applied if one of those locations falls within the 150km limit.
A notable exception to the conditions listed in the previous section and remarkable change compared to the older expat regime is the fact that the new inpatriate (researchers) regime can in principle be carried over from one Belgian activity to another.
In case an employee or a director benefitting from the regime changes employer or company, they are susceptible to keep on benefitting from the regime to the extent that:
- conditions with respect to the employing entity or company remain fulfilled
- the salary threshold is still met (see dedicated section)
- the total period of activity in Belgium (as from the first occupation) does not exceed 5 years, possibly extended by 3 years and
- it must concern successive employment (without interruption). However, if an employee was made redundant, a limited interruption period may be tolerated by Belgian tax authorities.
In that case, the conditions with respect to the individual’s situation in a 60-month period preceding the beginning of activities in Belgium will not need to be evaluated again.
To benefit from this possibility the new employer of company will have to file a new dedicated application request.
There is a minimum wage threshold. In order to be able to enjoy the new special tax regime, the inpatriate must earn a gross remuneration of more than €75.000 per calendar year (regardless whether it relates to a full-time or part-time activity) from their employer or company for services provided in Belgium. This amount may be indexed by Royal Decree every three years as from income year 2024.
The Circular letter confirms that this minimum salary condition is assessed not only at the time of the submission of the application request , but also during the entire period of application of the regime.
At the time of the submission of the application request, the gross remuneration refers to the normal gross annual remuneration which is certain and fixed at that moment. A bonus or other gratification that will certainly be awarded (no future conditions attached) can also be taken into account. When the bonus or gratification is not certain at the time (for example a target has to be achieved), it cannot be included in the gross remuneration to determine whether the minimum salary condition is met.
During the application of the regime the threshold is assessed on basis of the gross renumeration that is actually obtained (including bonuses and gratifications that are effectively received).
The above may imply some degree of planification as a given employee may be very likely to meet the salary condition during the lifetime of the assignment in Belgium, but not based on the unconditional contractual gross salary at the beginning of the assignment.
According to the Law of 27 December 2021, the minimum salary consists of the gross remuneration before deduction of social security contributions, excluding severance allowances, replacement income and the remuneration exempted under article 38 BITC. The list of exempted items is relatively long and includes, among others, pillars 2 and 3 of the new mobility budget as well as the lump sum exemption of benefits in kind for means of home-office transportation, amounting to €420 (for assessment year 2022, basic amount of €250).
If the minimal threshold is not achieved during a given year (for instance due to a transition to part-time activities in the course of the year and the transition to a salary split – see below), the regime will be terminated. The loss of the regime is retroactive as from 1 January of the calendar year in which the condition of minimum salary is no longer met.
This retroactive loss is susceptible to generate a substantial financial risk which will justify a close monitoring of relevant salary packages and careful planification of future changes to the employment situation.
The old tax regime can in principle no longer be applied for since 30 June 2022. However, in its recent Circular letter 2022/C/9, Belgian tax authorities have indicated that the old tax regime may continue to be applied until 31 December 2023, provided that the conditions of the old regime are complied with and the employee or director at hand already benefitted from it on 1 January 2022.
Expats currently benefitting from the old expat regime, present in Belgium for less than 5 years and who meet all underlying conditions of the new regime, therefore have the possibility to either opt in to the new regime or decide to keep the old regime and still benefit from the phase-out period. In our previous article, we demonstrated with an example that it is necessary to examine on a case-by-case basis which choice is the best, given that it may be more advantageous to continue to apply the old regime for the shorter phase-out period than to opt for the new one over a longer period.
In order to exercise the opt-in choice, the employer or company must submit an online application request by 30 September 2022 at the latest.
Inpatriates who were subject to the old regime and have filed an application request to opt in to the new regime, can still benefit from the old regime during the transition period if their application request has not been approved by the administration.
In case an individual is permitted to opt in to the new regime, the years the individual has already worked in Belgium until 1 January 2022 will be deducted from the 5 years limit.
In our previous article we stated that the social and tax authorities had yet to confirm what they will tolerate in terms of contractual arrangements with regard to the costs proper to the employer.
In the newly published circular the Belgian tax administration now confirms that the reimbursement of ‘costs proper to the employer’ can only be paid on top of the contractual gross compensation. It is thus not possible to apply a fictional reduction of the gross salary (as in the old regime). This means that it has to be contractually agreed upon and that existing contracts will have to be adapted to the new system whenever an inpatriate decides to opt in.
Furthermore, the Circular points out that an adjustment of the gross remuneration may also have consequences for measures and benefits related to the taxable gross remuneration (for example, accrual of additional pension, (pension) benefits, vacation pay, social insurance benefits).
We are of the opinion that, based on the comments provided by Belgian tax authorities, a consensual and contractual reduction of the gross salary of an employee alongside the attribution of corresponding costs proper to the employer under the inpatriate should in principle not be regarded as abusive.
The regime for inpatriate researchers is very similar to the regime for inpatriates. Under this section we will take a closer look at the difference in conditions between the two regimes.
Given that the objective of the regime for inpatriate researchers is to attract certain experts to conduct research in Belgium, directors are (contrary to the inpatriate regime) excluded from the researchers regime. Directors are not researchers, but executives in charge of the company’s operations.
To benefit from this regime, the employee must qualify as a researcher. The circular clarifies that a researcher is any employee who:
- alone or in a group, carries out research activities of a scientific, industrial or technical character, within a laboratory or an organisation that conducts one or more programmes of research and development.
The activity has to be exclusively or principally focused on research and development, which means a time commitment of at least 80% of the working time.
The 20% margin was allowed to provide working time for other activities in addition to the main activity of researcher (for example, not to exclude a researcher at the head of a team when performing administrative tasks as result of managing a team).
- is in possession of a (qualifying) degree as referred to in Article 32/2, §2, fifth paragraph BITC, or can demonstrate relevant professional experience of at least 10 years in the domains mentioned in the law (exhaustive list).
There is an appendix to the Circular which lists the fields of knowledge eligible for the degree requirement. Similar to the degree, the relevant work experience must also relate to one of these knowledge fields included in the exhaustive list.
Relevant professional experience can be demonstrated through a curriculum vitae, references from previous employers, trainings given, publications, etc. The Circular clarifies that a CV alone does not sufficiently prove 10 years of experience. It must be supported by other documents.
Because of the requirement to be holder of a specific degree of relevant experience, there is no minimum salary condition imposed in the framework of the regime for inpatriate researchers (contrary to the regime for inpatriate employees and directors).
In order to benefit from the new inpatriate regime, the employer or company must submit an application electronically. The application and attachments (a certificate signed by the inpatriate, stating his agreement to the application request) must be sent in a single pdf file within three months of the inpatriate taking up employment in Belgium to the administration via mail (firstname.lastname@example.org) or via www.myminfin.be.
For applications in 2022, the government has decided to reform the deadline for filing the application request into a period that can expire at the earliest on 30 September 2022.
At the latest by 31 January of each year, the employer needs to provide the tax administration with a nominative list of the employees, directors and researchers who benefited from the special regime during the previous year.
The King has to define the formalities of this communication to the tax administration. At the time of publication of the Circular, no Royal Decree has been published yet.
For the application of the new inpatriate (researchers) regime, the following expenses can be considered as reimbursements of costs proper to the employer:
- one-time costs on the occasion of the move to Belgium
- furnishing costs of the house in Belgium
- school fees for the children of the inpatriate (and his/her partner, in Belgium)
- all other recurrent expenses directly resulting from the employment in Belgium (hereafter ‘recurrent expenses’).
For each type of costs, the law provides an exhaustive list in article 32/1, § 6 and article 32/2, § 6 BITC.
It is up to the inpatriate to prove the reality and amount of these costs by means of supporting documents or other proof permitted by Belgian common law (with exception of the oath).
Costs related to the move to Belgium include the cost of a single trip to find a place of residence in Belgium, travel expenses of the inpatriate (partner and children included), as well as the costs of dismantling, transporting and assembling of the inpatriate’s furniture. Hotel cost (for the inpatriate and his family) for the first three months after the start of employment in Belgium are also considered to be costs proper to the employer.
Furnishing costs are limited to costs for the purchase of materials intended to remain at the residence in Belgium or for the purchase of household appliances in accordance with Belgium regulations. These costs are limited to an amount of €1.500.
The school fees for children of the inpatriate (researcher) who move with the inpatriate to Belgium and attend a private school or international school, when they are of compulsory school age according to Belgian law (under 18 years old), are considered to be costs proper to the employer. The eligible costs are limited to the registration fee, no other costs are included.
This category concerns “the recurrent costs directly arising from the employment in Belgium”. The employer or company can grant, on top of the remuneration, a reimbursement for expenses up to 30% of the gross annual remuneration as defined in the condition section of this article, with an absolute maximum of €90.000. If the employer covers recurrent costs for an amount higher than the limit (30% or €90.000), the excess is taxable as a remuneration.
When the inpatriate has to interrupt his employment and does not receive further payment of salary, but the recurrent expenses are still borne by the employer (contractual obligation), the 30% limit will be calculated on the remuneration as if the employment was not interrupted.
The Circular provides a non-exhaustive list of costs to be considered as covered by this category:
- additional costs relating to housing in Belgium (compared to the country of origin)
- additional costs of living in Belgium (compared to the country of origin)
- costs of private journeys to the country of origin for the inpatriate, his partner and children
- costs related to travelling to the country of origin on special occasions (birth, marriage or death of a family member).
The agreement to reimburse these costs has to be contractually stipulated. This means that there must be a reimbursement in addition to the agreed gross salary. The Belgian tax administration confirms that it is not allowed to apply a fictive deduction of 30% of the gross salary.
The system of costs proper to the employer as a result of the employment in Belgium can exist together with the classic system of costs proper to the employer to the extent that it does not generate any double. The classic system can still be applied to costs not referred to in the new inpat regime, which can be considered as a reimbursement of costs proper to the employer. For example: mileage allowance, representation costs, homeworking allowance, …
The regime can be applied for a period of 5 years, with a one-time extension of 3 years (maximum 8 years). Failing to meet the conditions (for example, the minimum salary threshold) in any given year will result in the interruption of the special tax regime on behalf of the inpatriate (researcher). In principle, the application of the new regime is definitively lost.
The extension must be applied for within 3 months following the end of the first period of 5 years.
It should then be possible to reapply for the regime if proof of an uninterrupted period of 5 years of absence from Belgium can be presented once more (along with meeting the other conditions).