Proposition 51K1407

Projet de loi relatif aux sûretés financières et portant des dispositions fiscales diverses en matière de conventions constitutives de sûreté réelle et de prêts portant sur des instruments financiers.

General information ¶

Submitted by

PS | SP MR Open Vld Vooruit Purple Ⅰ

Submission date

Oct. 26, 2004

Official page

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Status

Adopted

Requirement

Simple

Subjects

EC Directive tax direct tax financial instrument financial solvency financial legislation guarantee

Voting ¶

Voted to adopt

Vooruit LE PS | SP Open Vld MR

Abstained from voting

CD&V Ecolo N-VA FN VB

Contact form ¶

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Discussion ¶

Nov. 25, 2004 | Plenary session (Chamber of representatives)

Full source

I refer to the written report.

Mr. Speaker, Mr. Minister, colleagues, CD&V notes that the present bill goes beyond the directive. This Directive does not, in fact, cover collateral between non-financial undertakings and with the involvement of natural persons as set out on page 10 of the explanatory note.

This draft legislation brings together all aspects of the different types of financial security, regardless of the type of financial instrument provided as security. In itself, bringing together the legal rules on one particular matter is a good thing. Cd&V only asks whether these rules adequately take into account the differences in knowledge and skills between, on the one hand, the professional contractors and, on the other hand, the natural persons. The terms “financial instrument” and cash are very broadly defined. For example, the term "cash" refers to money deposited on an account, or rather the rights arising from depositing money on an account. A vision account is obviously also eligible for this. This is stated on page 25 of the Memory of Explanation.

If visual accounts are eligible, then also deposit accounts, savings books, futures accounts, deposited cash, BEVEKs and SICAVs. Consequently, the bill also covers the seizure of daily accounts belonging to natural persons. The deposit as included in this bill protects the natural persons much less than what is stipulated for the civil property. In addition, some comments from specialized legal practitioners show that the bill expands the tax concept "interest". Until now, an income from a debt claim falls under the concept of interest if the debt claim is of the same nature as a loan. A loan in the civil law sense implies that one party gives another party a sum of money in which the other party is obliged to return the same amount of money, increased by a fee interest. This interest is in principle taxable as a moving income. It follows from the literal reading of the draft Article 35, 1° to replace paragraph 1, 1° of Article 19 of the BGB that the concept of interest now encompasses income from any other debt claim. I think of examples of income from debt claims. It is technical.

I will give a few examples of earnings from debt claims which will make this technical explanation clearer. An employee receives due to law negligence interest on late paid salary. Salary is a debt claim. Negligence interest is income that has not been taxable until now. According to the literal new legislation, the employer will now have to hold a 15% mobile advance tax. Another other example. A tenant receives in principle negligence interest from the breach order. The tenant- debtor will have to retain a moving advance fee. The same applies to an invoice paid too late. Someone receives compensation, for example, in accordance with Article 1382 of the Civil Code, with compensatory interests and judicial interests. Both forms of interest are proceeds from a debt claim. The debtor will have to withhold 15% of the mobile advance duty and deposit it to the Belgian State. Insurance products are debt claims. On the revenue will in principle be due a moving advance tax. The Flemish Government obtains moratorium interest on late paid succession rights and other charges. The heir or legatar and taxpayers will have to hold and transfer 15% to the federal government.

It must be clear that the innocent removal of the words "of the same nature" will undoubtedly lead to numerous controversies, since this tax increase is carried out in a very obscure manner without much explanation. This questionable approach leads to legal uncertainty that taxpayers may miss as cheek pain. We cannot agree with this behavior. We will remember. We give you the opportunity to comment on the amendment we have submitted.

Mr. Minister of Finance, there has just been a discussion with the Prime Minister, among other things, about the numerous tax increases that this government provides in connection with the 2005 budget. We had a serious exchange of ideas on this. I note that, in addition to the tax increases included in the 2005 budget, other forms of tax increases are provided, including with the introduction of this law.

Mr. Minister, we assume that it is not your intention to introduce a tax increase here again. I think the ceiling of tax increases has already been reached. We give you the opportunity to escape this new tax increase in an elegant way by entering into our amendment.