Proposition 50K1973

Projet de loi concernant les plus-values à l'occasion de l'aliénation de véhicules d'entreprise.

General information ¶

Submitted by

Groen Open Vld Vooruit PS | SP Ecolo MR Verhofstadt Ⅰ

Submission date

July 17, 2002

Official page

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Status

Adopted

Requirement

Simple

Subjects

commercial vehicle capital gains tax direct tax corporation tax

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP Open Vld N-VA MR FN VB

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Discussion ¶

Nov. 6, 2002 | Plenary session (Chamber of representatives)

Full source

I refer to the written report.

Mr President, Mr

This Minister, I notice that the members of this assembly are numerous present.

On behalf of my group, I would like to thank the rapporteur, not for his silent report at this plenary session, but for its written presentation, to briefly intervene on the draft law that we are currently discussing.

The bill we are discussing is a result of the road blocks. Road blocks are coming, given what is going on in the ABX file, but there have already been road blocks during this legislature, following problems surrounding the excise duties on diesel, fuel and the transport crisis in general.

In 2000 there were effective road blockades that lasted for a long time because of the government’s impasse. This caused enormous economic damage to the country. At one point, a solution was proposed, not so much by the minister responsible for the matter, but by other excellences that suggested the carriers get so far that they would effectively remove the blockades.

History would be wronged if we did not emphasize the heroic role of the Minister of Finance in this regard. In my opinion, the Minister of Finance, with the common sense that characterizes him by flags, has contributed to a significant extent, together with the Minister of Employment and Labour — coincidentally joined here — to the resolution of the crisis.

The current draft legislation provides for an exemption from the value added tax resulting from the alienation of a commercial vehicle — a truck or a truck — when that value added is reinvested in an environmentally friendly commercial vehicle. This is a good solution, not only because it helped solve the crisis, but also because a meaningful environmental objective was pursued. After the entry into force of this draft law and of the implementing decisions, one will hopefully also be able to make a number of contributions to a number of environmental goals behind which our country stands.

It is important to know — unless the minister contradicts me — that the draft law can only come into force through implementing decisions, after approval by the European Commission.

The first important question in this dossier is the state of affairs with regard to the necessary approval by the European Commission of these measures. From contacts here and there, to which an opposition party like ours is condemned, I thought I understood that the approval of the European Commission was expected by the end of November. Well, the end of November is near and I would have liked to hear about the state of affairs with regard to the approval of the draft law and the implementing decisions, by the European Commission. I wonder, by the way, whether implementing decisions should also be subject to the approval of the European Commission.

I emphasize this, first and foremost because of the substance of the case, and then because of the fact that the State Council’s opinion on this bill — I refer to the pages 11 to 13 of the document 1973 — correctly and in accordance with the advisory procedure which is normally followed, notes that the government’s request for advice on this bill is inadmissible. The Council of State notes in its opinion — in my opinion correctly — that the government’s request for advice on the draft law is in fact inadmissible precisely because the measure which is the subject of the draft law and the implementing acts which are yet to come into force had not yet been notified to the European Commission at that time. This has now been verified in the facts.

I come to my third question, Mr. Minister. Is it true that the Government has submitted a draft law for advice to the State Council, while the notification of the proposed measure — which must be assessed by the European Commission for the potential market distortion — had not yet taken place? That seems to me important. At the time, I was still studying law. I think that does have a certain influence, and that it could even mean that the State Council declares itself incompetent. Through this way — by the government doing it willingly and knowingly — the government would be able to avoid the opinion of the State Council, which could eventually be pronounced as negative. The draft law in question is submitted to the Council of State for advice knowingly and willingly, while it is relevant to know that the Council of State, Mr. Pieters, will have to declare itself inadmissible because the measure in question – which is the subject of the draft law in question – has not yet been notified to the European Commission.

I have three substantive comments. The measure in question, colleagues, relates to an investment in corporate assets. I think we all agree on this. In total, four measures are envisaged that require an investment in assets.

The first measure concerns the exemption from investment value added of commercial vehicles. This is stated in the draft law document number 1973 that we are talking about here, more specifically in Article 2, which introduces a new article 44bis in the Code of Income Tax. This is a first measure that requires an investment in assets.

I come to the second favourable measure — in a way of speaking — which, in my opinion, is justified. My group is positive about the policy intent that is the subject of the draft law in question. The second measure is the spread taxation of surplus values. The draft law no. 1973 in question contains, if I am not mistaken in Article 4, the spread assessment of the surplus values in question. Article 4 aims to amend Article 47 of the Income Tax Code. This is the second measure.

The third measure is the investment withdrawal in general. I refer to the tax-common-law investment deduction in Articles 68 to 77 of the Income Tax Code. This is the third measure that requires an investment in assets.

The fourth measure is the treatment of the investment reserve in this case. The legal and fiscal regulation in this regard makes — if I am not mistaken — the object of Bill No. 1918, more specifically Article 6, which aims to introduce a new article 194quater in the Income Tax Code.

There are, therefore, four measures, Mr. Speaker, which, in order to qualify as owner of a transport company, require an investment in assets. I emphasize that because, in our opinion, quite a few concerns can be formulated about the notion of taxable age. I explain myself more closely. Measures 1, 2 and 4 in my list require an investment in assets within a certain period. That term varies depending on the casus in which we are located. On the one hand, there are measures 1 and 2, which refer to a period in the case of forced execution, such as fire or expropriation. On the other hand, it is a deadline for the voluntary realization of the surplus values.

We look specifically at the various possibilities, in particular the measures I have listed as the first, second and last. I will abstract from the tax-common-law investment deduction, as described in Articles 68 to 77 of the WIB. If we look at the taxable periods for measures 1, 2 and 4, we are facing a problem of complexity.

The government has pushed forward as a major policy objective, besides the many other, of course, which is now reminded quite ludic — often quite cynical — by the population in relation to the government, to make things a little simpler.

What am I putting in this? In connection with the first measure, which is exemption from revaluation surplus value commercial vehicles, in accordance with Article 2 of the draft law concerned, new Article 44bis, paragraph 3, in the Code of Income Tax I read: "The re-investment must take place no later than the termination of the professional activity and within a period: 1° of 1 year after the expiry of the taxable period in which the compensation was received ...; 2° of 2 years from the first day of the calendar year" — that is, Mr. President, something different from the taxable period in this — "in which the more values mentioned in § 1, second paragraph, 2°, have been achieved."

That is the literal text, Mr. Minister, of Article 2 of the bill we are discussing. Thus I am actually advancing the discussion of the articles, but I think the President will allow me to do so.

That is the first description of the, say, taxable period — the one time the taxable period, the other time the calendar year with a difference in term.

The second measure, which examines the taxable period in more detail, relates to the spread taxation of surplus values. It is the article 4 of this bill 1973, which amends Article 47 of the Income Tax Code. The re-investment must take place no later than the termination of the professional activity and this within a period: 1° of three years after the expiry of the taxable period in which the compensation was received ...; 2° of three years from the first day of the taxable period in which the surplus values ... have been accomplished.”

There are still some exceptions, possibilities for extension. I will not cite them extensively; they are contained, Mr. President, Mrs. and Mr. Minister, Colleagues, in Article 47 § 4 of the Income Tax Code.

Insofar as the arrangement of the second measure, which is the spread of the taxation of surplus values.

I come to the fourth measure, which is the measure concerning investment reserves, which is the subject of draft law 1918, which aims with its article 6 to incorporate a new article 194quater into the Code of Income Tax. Regarding the period of time for which the preferential measure may be applicable, we read: "An amount equal to the investment reserve must be invested by the company" — point a) and point b) — "within a period of three years, starting on the first day of the taxable period for which the investment reserve has been established and at the latest at the dissolution of the company."

Mr. Speaker, I have described this in extent, because it is a fantastic example of complexity. There are different periods of time in the conditions to benefit from a measure that is well intended, including for SMEs and self-employed persons. You should face the owner of a truck company, an independent carrier, but once with the complexity of this regulation and the different deadlines. I am not the rapest, but I still had to scratch my hair when I read the text for refreshment yesterday again. I will take the concrete example of depreciating a truck in accordance with the normal depreciation rules and replacing it with an environmentally friendly vehicle. You must take the place of that self-employed, of that small and medium-sized enterprise. Of course, he is satisfied because it effectively represents a tax reduction and I support that. But if you look at what conditions he must meet, this bill 1973 as well as the number 1918 still carry out a high degree of complexity.

Therefore I ask myself a few questions. First, Mr. Minister, why do you provide in this Bill 1973 a one- and two-year term? I just read it, right? In Articles 2 and 4, you provide for periods of 1 and 2 years, respectively, while in the other cases it is always spoken of a period of 3 years, in the listing of the conditions that must be fulfilled in order to benefit from the tax preference measure in question. You may ask yourself whether such a deadline is not too short. Mr. Minister, do you know what is the normal delivery time of a truck, a fortiori of a truck that must meet certain requirements? Is it realistic that a truck, which must meet certain requirements, can be ordered and delivered within a period of one year, so that a taxable undertaking or a taxable self-employed person could meet the conditions for exemption from value added on commercial vehicles? I also note that it is here, and that policy objective we support, to environmentally friendly commercial vehicles and trucks, which then may be an element of complication to the delivery deadlines.

Therefore, it would not surprise us that those deadlines are a little longer than normal, ⁇ when the market is warming, which is not the case now, ⁇ because of a certain policy. But well, at the moment there is no warming of the market. But it can be that at some point the delivery periods of specific trucks or vehicles, it is said to me also from the federations of carriers, are so long that one can actually almost still meet those conditions. The measure you propose, which you ask us to approve, would be a blow to the water for a large part of the companies involved.

I now come to a second set of questions. I have some problems, Mr. Speaker, with the confusing use of the notion of taxable period on the one hand and the notion of calendar year on the other. It turns out that in all cases the tax regulations applicable here refer to the taxable period, which we say is the normal nomenclature, which is the normal reference that should be made in the tax regulations therein, although with the exception precisely of this bill concerning the voluntarily achieved surplus value on commercial vehicles, where one speaks of the taxable period and not of a calendar year. Is this a mistake, or is this really meant? If so, what is the ratio legis? Why is this a taxable period and not a calendar year? In the personal tax, the problem is less because in the personal tax the taxable period coincides with a calendar year. In practice there will therefore be no difference between the two. But of course that measure, which you present to us here for approval, is, among other things, and ⁇ even mainly applicable in corporate taxation. The exemption for realised value added on commercial vehicles for all those undertakings, many of which are not natural or taxable persons but legal persons, will therefore in many cases involve the application of corporate tax. You know as well as I, Mr. Minister, although I doubt this when I read these texts, that the taxable period in the corporate tax varies depending on the fiscal year, which can be shortened or extended but that in many cases therefore will not correspond to the calendar year.

I ask a rhetorical question. Is the measure you propose also applicable to companies? I suppose you will answer yes. Why does the design deviate from the usual concept of "taxable age"? How will you solve the problems — again an element of complexity — in corporate tax when companies do not carry out accounting per calendar year? How is this problem solved? Will you provide any clarification in the implementing decisions? Will you, in agreement — I suppose — with the industry, seek practical solutions that will survive the legal test? What is the ratio legis of your choice?

I agree, Mr President. CD&V has principled questions not only concerning the course of the procedure, but also concerning its content. I am talking about the notification to the European Commission. We also have questions regarding the fact that implementing decisions are being prepared without the European Commission having already ruled on the notified measure of the draft law, using a very specific technique: consultation is requested to the State Council while it is known in advance that the State Council must declare the consultation request inadmissible, because the case has not been notified to the European Commission. Second, we have a lot of questions about a ⁇ complex aspect, in which different embodiments of the concept of taxable period are used. There, in the modest time that was measured to me, I gave a few examples of giving and a tip of the veil illuminating the practical difficulties for self-employed persons, SMEs and self-employed carriers.

Mr. Speaker, as regards the European Commission — the first question of Mr. Leterme — I asked the European Commission in the Ecofin Council yesterday in order to obtain a response not only on that measure but also on two other measures that were transmitted to the European Commission. I expect an answer in the second half of November. I think it will be a favourable advice. This is obvious: there is already a positive response for certain countries that have taken other measures on excise duties and taxes on gasoline and diesel. We made a different choice. We have chosen measures that do not affect gasoline and diesel prices. I think the approval of the European Commission will follow the answers in the second half of November. Again, I think the answer will be positive.

It is not necessary to submit the royal decrees to the European Commission. We have already made a presentation with all the necessary measures. We can continue with the implementation of the bill and some implementation measures without a new deadline.

Second, as regards the problem of the Council of State, that is another matter. To be clear and clear: it is a political choice. Why Why ? There is a difficulty. We can ask for an opinion from the State Council after a positive opinion from the European Commission, but that is only after a very long period of time, ⁇ even several months.

You know that two years ago an agreement was reached with the carriers. We have made a different choice in a design than other countries. We first asked the State Council for formal advice on this subject and subsequently submitted the text to the European Commission and Parliament. In fact, there is only one problem and that is one of compliance at the European level. Is there state aid or not? That response should come from the European Commission, rather than from the Council of State.

So I repeat that it is a political choice to come to Parliament and to the European Commission, possibly even without serious investigation by the State Council, but that is a consequence of that choice. It is more a European problem that needs a European response in terms of compliance with European regulation.

This is not the only proposal behind such a reasoning. We come to Parliament with a formal opinion from the Council of State, but we will have to issue a new royal decree in order to be properly implemented after the advice of the European Commission. I repeat that it should be possible in the second half of November.

Regarding the different deadlines, it is true that the regulation is complex. There are several reasons for this.

First, it is always very difficult for fiscal favourable measures for specific sectors to come up with very simple measures. There are many different questions and there are often exceptions compared to general law and the general system. That complexity is normal.

Secondly, something happens in consultation with the sector. In September 2000, we had, also with Minister Picqué, who was present, a consultation and negotiation with the sector for two to three days and nights. After such negotiations, we have taken many measures, still in consultation with the sector. Now we have an agreement with the carriers to implement the measures. I think it is useful to repeat this process.

Third, we come to shorter deadlines compared to general law. Therefore, we also make a budgetary choice to ensure proper control. We must come to reuse a value added in a shorter term to make sure that there is a link between the value added and the new investments.

I would like to tell you, Mr. Speaker, that it is quite logical that the deadlines are often quite short — I will return to it — because what we obviously want is that the surplus value is used for the replacement vehicle.

I am well aware that delivery times are generally quite long, but many carriers, when they resell a vehicle, still want to dispose of a new vehicle as soon as possible – and if possible from the next day. It is quite rare in a transport company to sell a part of the fleet and stay for a quarter, two quarters, a year, waiting for the new fleet. It is a fairly simple rule of management, even for transport SMEs, to ensure that when anticipating a value added on a vehicle, it is also provided at the same time the replacement, with sufficient delivery times.

Those deadlines seem quite long. Logically, it is the same day or the same week that the change is made, being understood that orders have been placed long in advance and that assignments have sometimes been decided long in advance. But I acknowledge that, as in many other areas in tax matters, rules favorable to a sector are generally quite complex. I do not claim — I have never said it anyway — that this bill was a draft for simplifying taxation on transport companies. But I can tell you that transport companies prefer a somewhat complex bill that gives them a tax advantage to a simplification project that could be taken, aligning their provisions with those of other companies, with obviously a higher tax cost. This is quite common among taxpayers. In terms of terminology, I can say the next. For the use of different concepts, such as the year of the calendar year, are different redemptions. Ten eerste, dat ontwerp is niet alleen van toepassing op de vennootschapsbelasting, maar ook op de personenbelasting. We come therefore to a balance: for all carriers the same redemption is valid. Het hanteren van de termijn per kalenderjaar is ⁇ the best solution for everyone. It was a choice to do it. It was evenzeer possible om en termijn per aanslagjaar te hanteren. How and also I think that we have no correct solution for all taxpayers.

In short, I hope that, two years after consultation with the industry, it will be possible to reach the adoption of the last measures, including those on insurance tax.

Second, I hope to receive a positive response from the European Commission in the second half of November for as soon as possible implementation.

Third, there are still some complex elements. I think, however, there is a very important argument to go, in consultation with the sector, towards a reduction in taxes. I would rather go to a reduction in taxes, along with a simplification of the system. Although the system is complex, it is in the benefit of the carriers.

Mr. Leterme, give your replica but calmly from your couch.

Mr. Minister, this is not the first time the method is used, but I could ask this rhetorical question: suppose that the European Commission says no — it is a hypothesis — in what situation are we in? The law is approved here, transmitted to the King and announced, but the European Commission says no.

The State Council has noted this.

Very rightly, I think.

I repeat it. First, there must be a positive opinion from the European Commission and then a royal decree for the concrete application of the law. There is a difference between a royal decree for the introduction of the new legislation and another decree that can be transmitted to the King, for the execution of various precise measures, which however cannot apply without a general royal decree. It also provides in Article 8 of the draft for the entry into force of the law.

It may be a special method, but we think it will be possible to get a positive advice. We come to Parliament with such a very specific measure to work faster. We therefore proceed with various measures: a royal decree for the enforcement of the law that comes into force only with a very specific royal decree for the enforcement of Article 8. So there is no danger. There is a balance between the so-called Maribel risk and a delay in a new measure. So we can go faster, without any risk of a new Maribel problem. There is a balance between the two.

I repeat, for me it is more important to have an opinion of the European Commission than an opinion of the Council of State on a European legislation.

I would like to point out that the debate in the plenary session will be more extensive than the debate in the committee. However, this is not the first time that happens.

( ... ...

This is probably due to the different arrangements. I have no problem, far from that.

Mr. Speaker, I would like to say something more on the content of the debate, as well as on that procedural point: I will meet you and make sure that later in the committee the discussion of a draft law on VAT takes long enough, so that, when we return here, the discussion in the plenary session can be shorter. I will do my best for that.

Mr. Minister, I take note of your explanation. Indeed, we need to repair ourselves, because the first action of the carriers against the government is only almost resolved, or there are new actions being announced. Before new protests against the government are launched, it is important that the previous agreements are fulfilled. That is a good reason to continue as soon as possible.

As for the complexity, you have admitted that the scheme is complex. You have an argument when you say that that complexity was created in consultation with the professional group. They have also chosen for a certain degree of complexity.

Finally, Mr. Speaker, I have a small question concerning the coherence of the time scheme provided for in Article 47 § 3, secondly, with the exception in Article 47 § 4 relating to the three years and the five years.

It may be an idiotic question, but I assume that this is not cumulative. This is one of the two deadlines. Article 47 § 3, 2° thus refers to a period of three years from the first day of the taxable period in which the above-mentioned surplus values — and so on — have been realized. Then there is an exception, an extension of periods which — if I understand it all correctly, but my resources in this regard are very limited — is contained in Article 47 § 4. I suppose it or it is one or the other. When it comes to reinvestments in real estate, ships and — ⁇ it is cynically meant, but it is stated here — aircraft, then it is a term in itself.

( ... ...

You can find it in the coordinated text and also in the annexes.

But only in Dutch, not in French.

Yes, I saw it, only in Dutch.

It is only a correction in Dutch.

There is always a clear determination or choice whether one is in one case or in the other, depending on the nature of the property in which one makes the reinvestment. I read it like that.

Mr. Speaker, it is in the interest of the Innovative Approach of the Chamber to have a coordinated text in annex.

That is why we made it mandatory. The House will remember it later, I hope.

We are not changing anything to the current system in this matter and therefore from this point of view, I can confirm the situation without difficulty. It is true that if we look at the coordinated texts, we also find the existing provisions.