Proposition 52K1276

Projet de loi confirmant l'établissement de certaines taxes communales additionnelles et de la taxe d'agglomération additionnelle à l'impôt des personnes physiques pour chacun des exercices d'imposition 2001 à 2007 et modifiant l'article 468 du Code des impôts sur les revenus 1992 à partir de l'exercice d'imposition 2009.

General information ¶

Authors

CD&V Jenne De Potter
Groen Meyrem Almaci
LE Christian Brotcorne
MR Josée Lejeune
Open Vld Luk Van Biesen
PS | SP Guy Coëme
Vooruit Peter Vanvelthoven

Submission date

June 25, 2008

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

direct tax tax on income tax collection local tax local authority finances

Voting ¶

Voted to adopt

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

Voted to reject

LDD FN VB

Party dissidents ¶

• Hans Bonte (Vooruit) abstained from voting.

Contact form ¶

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Discussion ¶

July 10, 2008 | Plenary session (Chamber of representatives)

Full source

by Mr. Jean-Jacques Flahaux, rapporteur, refers to the written report.

Mr. Speaker, dear colleagues, the text that the Commission proposes you to adopt tonight is quite special and can be called an exception. I briefly summarize the situation. Many municipalities, both in the north and south or in the center of the country, have voted their municipal additional to the personal tax too late compared to existing regulations. Therefore, citizens revolted against these late decisions, brought the matter before the courts and obtained satisfaction before them, on the grounds that tax regulations, in particular, cannot have retroactive effects and can only apply to the tax exercises following their adoption.

A real problem arose, that of ensuring, on the one hand, the continuity of the public service and, on the other hand, to avoid any form of discrimination. Indeed, some citizens may allow themselves, due to their sufficient knowledge or financial capacity, to initiate a judicial remedy and obtain satisfaction, a decision which intervenes only for them but not "erga omnes". When the subject was discussed in the committee, the members argued that it was sufficient for the municipality in the absence of having voted correctly its tax regulation, to increase its tax rate the following year. It seems to me that such a reaction is ⁇ discriminatory in relation to the large number of citizens who have not exercised this right of appeal.

At first, the government was committed to trying to find a solution. A text came twice to the Council of Ministers, but its course was not followed. It is important to note that the State Council which had been consulted had not, in relation to this text, raised any fundamental objections.

Then, this text, having not continued its path within the government, came to the table of Parliament, which must have taken its responsibilities. And these responsibilities, all those who agreed to co-sign this text took them, I think. This text, inspired by the one that served as the basis for government deliberations, but which has also been amended in some parts at the request of different commissioners to meet the requirement of legal certainty, is the one that is proposed to you tonight.

The rest of my speech, Mr. Speaker, dear colleagues, will try to explain precisely, in a particular situation, how the text can be considered sufficiently legal security. It must be known that we are here in terms of taxation and the rule is that the tax law is absolutely not retroactive. There is also this particular difficulty related to the fact that citizens have obtained satisfaction in the courts and that these decisions have been flooded in force of thing judged. The proposal that is formulated – if it is adopted tonight – will thus cover these nullities and prevent those citizens, having obtained satisfaction, from benefiting from decisions or judgments intervened in their favor.

The legislative proposal on the agenda tends to settle, both for the future and for the past, the consequences of late adoption of a tax regulation fixing the percentage of the additional tax to the natural persons tax. By counter-signing this bill, the CDH has mostly wanted to propose a structural solution regulating situations where the tax regulation is adopted late. This solution is articulated on two axes. The first, in my opinion, poses no legal problem, since it postulates for the future. It consists in saying that from the 2009 tax year, the tax regulation fixing the percentage of the additional municipal tax to the natural persons tax must be adopted and published by display before 1 February of the year of the current tax year. Thus, for example, for the income of the year 2008, tax year 2009, the tax regulation must be adopted and published by display no later than 30 January 2009.

Compared to the current situation that prevails, an additional one-month period is given to the municipal council, which is valuable. The objective is to settle special cases, for example the change of majority after a municipal election that may justify exceeding the time in which the tax settlement must be approved. In addition, it is, especially for the municipalities of the Walloon Region, to settle the possible cases of motion of confidence that allow the overthrow or replacement of majority during the legislature. It seems to me that there is no difficulty here since we legislate for the future.

The second axis, ⁇ the one that will pose the most problems, is the one that settles the case of a late adoption of this tax regulation. In the text we propose, the new article 468 provides for a safety net that consists of filling the legal void resulting from the forclusion that affects the validity of the municipal council’s deliberation. In such a situation, it will fall back to the percentage applied for the previous taxation year and no longer to a legal vacuum situation where the tax settlement was considered to be non-existent, where there was no longer a legal basis for municipal taxation. It is difficult to imagine the continuity of the tasks of the municipalities concerned.

For the past, i.e. for the tax years 2001 to 2007, the validation of the contested tax contributions is carried out by a retroactive recovery by law of the percentage of the additional tax per year for each of the communes of the Kingdom and, finally, by the confirmation of the tax contribution as established in principal and in addition. In a certain way, we will be replacing this evening the municipal legislature, which is why we wanted to include in a table attached to our proposal all the municipalities with their regulations and the rate of the tax they had voted. This is a retroactive recovery and a confirmation of the tax contribution.

This procedure seems to us necessary in order to establish the certain nature of the tax debt. The certainty of the claim against the taxpayer does not, as in private law, result of the agreement of the parties but of the law. For municipal additional fees, the legality of the contribution results from the timely adoption of a tax regulation. Otherwise, the tax debt is null, in any case for its part in additional and the contribution must be degraded as soon as the taxpayer submits a claim within the time limits that are three to six months. This is the subject of paragraph 3 of Article 2 of our proposal.

Thus, the tax debt will be undoubtedly certain, that is, that it has a legal basis, it will be liquid, it will be expressed in quite particular amounts and finally it will be due, the liquidity and the demandability resulting from the enrollment of the contribution; this is what paragraph 2 of Article 2 explicitly confirms.

Finally, it is indispensable to emphasize that this parliamentary initiative is fully respectful of the Constitution and the distribution of powers between the entities, federal and federal, which make up Belgium. In fact, Article 170, § 4, paragraph 2 of the Constitution stipulates that the law – in the constitutional sense of the term, that is, law in the federal sense – determines only the exceptions to the imposition power of communes when the necessity is demonstrated. It seems to us that in this case, the necessity is ⁇ demonstrated.

Article 465 of the Income Tax Code 1992 is an application of the aforementioned provision, in such a way that the recovery by the federal legislator of the percentage of the additional tax for the taxable years 2001 to 2007 falls within the scope of the exceptions that the federal authority may provide in relation to local authorities. Furthermore, the power of the Regions is here by no means infringed by the law, since the law does not affect neither the autonomy of the communes nor the power of custody.

Here, Mr. Speaker, is the essentially legal aspect of this proposal.

I dare hope that the situation in which many municipalities have found themselves will no longer force us in the future to have to adopt legislation like this, which manifestly has a very special and exceptional character. I hope that what has just happened will serve as a lesson for the future and that, from now on, all the communal powers, as well as all the federal powers, will make sure to respect the regulations which, in matters of taxation, are ⁇ restrictive and of strict interpretation.

Mr. Speaker, colleagues, the House cannot be ⁇ proud of the legislation that has been proposed, but that legislation is very necessary.

As Mr. Brotcorne just stated, this is an exceptional situation. Today we must pass an exceptional law to regularize something that has not been done correctly in various municipalities. The municipalities have late approved the tariffs for the additional municipal taxes. They went to courts and went to the Court of Cassation.

As regards the municipality of Lessines, the Court of Cassation clearly stated in its judgment of 14 March 2008 that the taxable person is right. A municipality may not approve a supplementary regulation after the expiration of the calendar year in which this supplementary tax was in force.

There are two possibilities. Or the Chamber acts as if its nose bleeds, and we leave each congregation to its fate. However, we must realize that many municipalities are in the same conditions as in Lessines. In Flanders alone, 89 out of 308 municipalities have approved their tax regulations after 31 December 2006.

The taxes that were then levied in favor of those municipalities were under pressure. The Court of Cassation had given the taxable person the right and stated that he did not have to pay the additional tax. As a legislator, one stands before an accomplished fact. Either we support those who have come to court through lawyers or fiscalists and got right, by doing nothing, or we say that we will act as a federal legislator.

The Government has taken a number of initiatives and asked the House to take the initiative out of its hands and to sign it together with all political parties in power regionally or federally.

We come out for that. We have no problem with the fact that we have passed this law together with Ecolo and drafted it with sp.a, because they were part of the government. We have no problem with this. Why not ?

The [...]

This legislation, Mr. Annemans, contradicts two fundamental concepts.

The first basic concept is the right of local autonomy. Is it intended that the Federal Chamber in the future will take the place of the municipality and determine the additional municipal tax for the municipality? The answer to this must be clearly denial. It is not intended that this will happen.

Secondly, can the Chamber approve tax regulations retroactively and even go back to the tax year 2001? In other words, can a tax regulation be approved that goes back in time? The retroactivity and the charter of the taxpayer. Anyone who follows fiscal deontology knows that it curses with fundamental taxation. Everyone knows that.

Nevertheless, as Democrats in Parliament, we have decided that such a proposal should be submitted to the House. Why did we do this? It cannot be that whoever goes to court and can pay lawyers and fiscalists does not have to pay municipal taxes, while all other taxpayers do.

Moreover, it cannot be that those who have not gone to court, the year after, must pay the taxes of those who have gone to court. That is unacceptable.

The current bill is a unicum and hopefully will remain a unicum. We will not accept that such regulations will still be needed in the future.

Therefore, the present proposal does not only confirm the retroactivity of the tariff rates for municipal and agglomeration taxes. In addition, two elements were added.

It is democratically difficult to answer that an old coalition must fix the tax rate for the new coalition, which is elected in October after the municipal council elections and starts from January. Therefore, we have introduced in the current legislation that it can approve legislative additional municipal taxes until 31 January of the year following the calendar year.

A third novelty in the present proposal is that if the approval of a regulation is refused and there is no agreement under a new management team in January, the old regulation always remains in place.

These are the novelty that this proposal intends to introduce and which are very important for various city councillors or for the people who carry responsibility in their municipality. If you welcome this proposal today – given the fact that this has happened in the committees, I think that we will also get the green light today –, in the future the old majority will no longer have to determine with which tax rates the new majority will have to work in the future. We give the new majority until 31 January the opportunity to regulate the intended tax rates and thus, in other words, as a new board of directors also bear responsibility for taxation and for the sacrifices it demands from its citizens in order to be able to implement its policy for the following years.

I think that by these novelty, which were added, all apples that are made to the courts of appeal and the Court of Cassation and the like, can finally take an end. I have already received various responses from people from the tax world who believed that the law is concluding by which any form of cancellation appeal ends on the decisions made by municipalities. I hope that this will put an end to many legal and fiscal complications and that in the future a lot of uncertainty will be avoided for the municipalities whether they are entitled to the taxes they have levied for the fiscal years 2001-2007. I thank you.

Mr. Speaker, colleagues, Mr. Minister, we vote today on a proposal that will be an important legal fact for many municipalities in our country. We vote on a law that should allow to ensure the proper functioning of, among other things, 88 Flemish municipalities. In many municipalities, after the municipal council elections, a new majority has arrived that has fully in good faith approved the regulation of the supplementary personal tax, though too late.

It happened in good faith, because these new coalitions have often been established with some delay. But also in the other municipalities where there has been no coalition exchange, it happened in good faith, because the Court of Cassation until its judgment of 14 March 2008 allowed municipalities to approve their tax regulations in the year of registration itself, so after 31 December.

There is a new fact since the new judgment of the Court of Cassation on 14 March 2008. The Court of Cassation held that a tax regulation adopted after 31 December is too late and therefore unlawful.

Such delays can, of course, pose a major problem for the municipalities concerned. Citizens can file a lawsuit against the tax regulations and demand a refund of their taxes. In this way, the financial capacity of the municipalities can naturally be compromised, especially if multiple matters are stressed by multiple citizens.

Therefore, with this proposal, we regulate the situation for each of the tax years from 2001 to 2007 by fixing the percentage of the additional municipal tax legally. In this way we guarantee the incomes of the municipalities. But in this way we also eliminate a discrimination between residents of the same municipality, namely between, on the one hand, citizens who have initiated a dispute and received a refund – in other words, the citizens who know the law and can pay a lawyer – and, on the other hand, citizens who have not filed a claim and have not received a refund.

In addition, the latter are at risk of being hit a second time if the taxes are raised because the municipalities identify a deficit, a financial problem.

The proposal also includes a structural solution. From the entry into force of the law, tax regulations may be approved until 31 January of the calendar year for which the tax year is mentioned.

With the present law, which enjoys the broad support of both majority and opposition in the Chamber, we try to solve a problem that effectively exists in 88 Flemish and 200 Wallish municipalities, since the municipalities were in good faith and we do not want the financial capacity of those municipalities to be compromised. Nor do we want an inequality between the citizens of the same municipality.

Mr. Speaker, colleagues – if I can still speak –, Mr. Van Biesen and De Potter, the anointing words that you try to say here about the present bill, are completely drawn from the pot. What you are doing today is pure demagogy, creating a completely unlawful state, because you refuse to let people who are right also be right. Your curved reasoning is completely inappropriate; it does not fit into this story.

The present bill illustrates the way this is done. Some people have filed a complaint and also get equal on the basis of their complaint because the municipalities have remained in default.

What is being done here? Well, retroactively, it is ensured that those municipal treasures can be fed at the expense of the taxpayer, because you are all in those municipal and city governments and because you feel the shoe wringing there. I think this is completely wrong and a very bad signal.

The way you work here also illustrates how you want to organize this country. Laws are not meant to bind the government. On the contrary, you loat them with all pleasure to your laws and you even adjust them retroactively. The legal certainty for the citizen is obviously not for you of tel. When the government makes a mistake, in good faith, the laws are amended retroactively with all pleasure. This is not the way it works; not for the citizen, not for a government.

You turn the clock back with all pleasure, the law is wiped off the table and adjusted retroactively. Therefore, we are not talking about the legal problems that you may encounter afterwards. Apparently, all Flemish parties, except Lijst Dedecker and Vlaams Belang, think that the incomes of the municipalities and of the mayors are more important than those of their citizens. I think this is a completely wrong signal.

Dear VLD friends, it becomes absolutely ridiculous to see this Open Vld Act when we consider the two recent initiatives created by your party. First, Van Quickenborne argues that the municipalities are responsible for the high energy costs and that they must save to ensure that in the future the opt-ins and municipal tax will not rise. At the same time, you allow Van Mechelen on the Flemish side to refund 600 million euros for the debts of the municipalities. Here you will then try to recover taxes through a backdoor

I am totally against this. The municipalities were wrong, they did not perform their task. This should not be corrected retroactively. You yourself say that it is not intended that the federal parliament will determine or levy municipal taxes. Here you are intervening. You have to stay in between.

Finally, this bill proves that no traditional party can be trusted when it comes to bringing down the cost of this government, the cost of the local governments. Every opportunity you get, you go through, you go on the cap of the taxpayer your municipal treasury sponsors. That is perverse.

I would like to hear Mr. Van de Velde on the concept of equality before tax.

Everything you say is correct in relation to the delays and mistakes committed by the municipalities. What we want to do today is to restore a form of equality. Some citizens were able to afford to appeal and they were satisfied. The risk tomorrow, if we do not intervene, is that citizens who could not afford this type of remedy must pay the following year for those who were exempt from tax because there will be a shortage in the communal cash. This is also and essentially what we aim for with the exceptional regularization we propose today.

If your equality means that people who are legally right should be punished, then that kind of equality may apply to PS and cdH, but not to me. If you get right in a trial, you are right. Other people, who are currently damaged because they have paid that tax – wrongly – should now have the chance to recover them, Mr. Brotcorne. With all respect, but your municipal treasury does not exceed the tax money of our citizens. You have had the opportunity to execute those municipal regulations in a defective way, but you have missed that. This is the shirt off. You should not go back eight years in time.

I said later that I still do not trust any of the traditional parties to somehow bring down the cost of our local governments. The cost of our local governments drives our economy.

And then there is the demagogy of Sven Gatz, for example, who said this morning that we must ensure that there are no more officials at the Flemish level. That is pure demagogy, because you get the money back here through back doors. Stop your explanation. Today you have the opportunity to prove that you are in your opinion and that you want to collect and pay taxes in a fair manner.

I have a sincere question to Open Vld, MR and N-VA. If you want to reduce the public burden in some way, now is the time to show that and reject this unimaginably perverse bill, like our group, radically.

Mr. Speaker, colleagues, I will not repeat everything the previous speaker said, but I can fully join him. Our group in this Parliament has already experienced a lot of fiscal spikes in recent years, but the bill that is now being discussed can, in my opinion, also be classified in this category.

Anyone who has looked closely at the list of applicants can immediately see that all political groups that have land-seated mayors and ship colleges, with this bill introduce a retroactivity for the additional municipal taxes. Both CD&V - N-VA, Open Vld, Green!, cdH, PS, MR and sp.a want not only to regulate the additional tax regulations retroactively. Furthermore, there is even a provision for an extension of the period until 31 January of the calendar year to which the reference year is referred. The taxable period is extended.

The Flemish Interest is therefore surprised at the ease with which such retroactivity is introduced by all these political parties at the local level. In terms of taxation, this does not provide legal certainty. In addition, this bill breaks the annality of the tax regulations that regulate the additional contribution from the personal tax.

The Flemish majority parties always have their mouths full about the autonomy of the municipalities, but now that a number of municipalities have failed to meet their obligations in recent years, it is suddenly the federal legislature that must act as a deterrent.

And then just ask questions to the Minister of Finance to transfer the advances faster and more correctly from the federal government to the municipalities! By extending the taxable period, this process is complicated. You have to know what you want, of course.

Colleagues, this bill also has an important precedent value, as Minister Reynders has also confirmed in the committee. Given this precedent value, the Flemish Interest in the committee requested the opinion of the Council of State. This was rejected by all other parties.

We would also like to point out that the Court of Cassation recently ruled against the introduction of tax regulations on a retroactive basis. The Flemish Interest considers that the additional contribution to the personal tax should be approved in time and considers it unacceptable that the government itself now wishes to settle this in a retroactive way for the past income years.

While every taxable person must comply with all obligations, this apparently does not apply to local authorities. This is again such a typical example of good governance with which the Flemish federal majority parties stand so high.

It is written in the stars that the new arrangement will be challenged at the Constitutional Court on the basis of the principle of equality and consequently will lead to a suspension of the law. Therefore, the Flemish Interest Group will today vote radically against.