Proposition 52K2311

Projet de loi portant des dispositions fiscales.

General information ¶

Submitted by

CD&V Leterme Ⅱ

Submission date

Dec. 4, 2009

Official page

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Status

Adopted

Requirement

Simple

Subjects

tax fiscal policy appeal to an administrative authority

Voting ¶

Voted to adopt

CD&V LE PS | SP Open Vld MR

Abstained from voting

Groen Vooruit Ecolo N-VA LDD FN VB

Party dissidents ¶

• Peter Luykx (CD&V) abstained from voting.

Contact form ¶

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Discussion ¶

Dec. 15, 2009 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, I would like to give a brief report to the colleagues present, who have come up this morning.

There are two draft laws, one concerning tax and various provisions, the other only concerning tax provisions.

The Bill No. 2310 containing tax and various provisions contains 7 chapters. Ladies and gentlemen, do not worry. I will not overcome them all, but I would like to highlight the most important elements of the bill.

For natural persons, it is primarily about not applying a negative indexation to the amounts of the Income Tax Code of 1992, which is positive for taxpayers. For legal entities, it is mainly about the tax shelter, which is extended to Belgian establishments of companies subject to the tax of non-residents. In addition, the scope of application is extended from the long-term film to the film. For the rest, in Chapter 2 of the draft, a number of technical adjustments have been adopted as a result of the circular Cobelfret.

In the discussion, colleague De Potter asked, following the expansion of the tax shelter, whether it is possible to extend it to the sector of video games. The Minister responded that he was positive to that proposal and suggested that a parliamentary initiative be taken in order to do so. Mr Goyvaerts informed in connection with the tax shelter whether the aid scheme was aligned with the European Commission. The Minister responded positively.

An amendment was submitted by Mr. De Potter and consorts, entitled “Special provisions relating to the corporate advance tax”. These are a number of articles to clarify the application of the exemption from overflow of enterprise advance fees due by researchers’ salaries. The amendment was adopted in the committee with 10 votes for, 1 vote against and 2 abstentions.

Chapter 3 of the draft concerns technical changes to Belgian legislation pursuant to the Savings Directive. Chapter 4 provides that the reduced excise duty rate is reserved only for undertakings that demonstrate that they are implementing an energy saving plan.

Chapter 5 amends the penal provisions on customs and excise duties, taking into account a judgment of the Constitutional Court. Chapter 6 Chapter 5 of the Act amends several provisions of 2008 concerning the transfer of worthless securities and the management of sleeping securities accounts. Last but not least: Chapter 7 regulates the abolition of the Belgian-Congolese Fund for Delegation and Management.

With an amendment by Mr Gustin and consorts, a chapter 8 was introduced in the committee to regulate the exchange of data on the registration of vehicles. Mr. Tobback and Mr. Bogaert stated that they were pleased with the maximum exchange of data between public services, to which the Minister replied that he would submit a bill to the House to further enable the exchange of data between public services. The amendment was unanimously adopted. The entire amended draft was adopted with 10 votes in favour and 4 abstentions.

So I come to item 2311, the bill containing tax provisions. This provides for a change in the conditions for a request for a subsidiary attack as a result of a judgment of the Constitutional Court. Mr. Brotcorne and consortia submitted amendments to Articles 2 and 3, which were supported by the Government. During the hearing, Mr Tobback stated that these provisions would differ from the judicial procedure. The amendments were adopted by 10 votes in favour and 4 abstentions. Also this whole was adopted with 10 votes in favour and 4 abstentions.

There were no speakers. However, there is an amendment, Madame Almaci. Do you ask for the word in the general discussion or can I give you the word immediately to defend your amendment?

I would like to participate in the general discussion.

You have the word in the general discussion.

In any case, I apologize for the delay. I agree with the hearings of the Court of Auditors. I was just responding to getting the person we were interviewing.

I had already announced in the committee that I would like to take the floor. It has, of course, all to do with the speed with which this Parliament is pursuing this and other bills and the extraordinary apathy displayed in the Committee on Finance, which was also abundantly accused in the Conference of Presidents.

I do not have to remind my colleagues in the committee that the majority has been present in the last few weeks. We had to suspend almost every meeting for an hour and this several times.

I would also like to say a word about the task of this institution. The task of this institution is, of course, to control the government, and it is done by taking enough time to thoroughly examine the various bills, which are on the agenda. But what do we notice? This bill, which we have received at 13 o’clock 13 the day before the committee discussions, is simply transmitted at the time of the committee meeting itself, the next day, on 9 December at 14 o’clock 30 with a vote of the majority, which was in number. No one who was there had – given the heavy agenda of the committee – had the time to review that bill. With the exception of two colleagues from CD&V, whom I congratulate for that, the majority has just let this pass. One would not want to sit there longer than necessary because one would only hurt oneself.

One was more interested in the upcoming holiday than in the control court of Parliament. That is absolutely true. It has even been said to me with so many words. You only hurt yourself. This has no sense.

We received that pressure sample the day before and the day after, without anyone really having been able to take the effort to see it properly, it is hunted by it.

The colleagues of CD&V, the gentlemen The Potter and Watershoot, have supported us. Unfortunately, the rest of the majority found its task not important enough to give that bill time, to sink it, to investigate and discuss it, and to fully embrace its role, which it must actually take on.

It’s early and it might fall a bit heavy on the stomach then, but I could start a whole story about the separation of powers and what actually the role of Parliament is. I realize that, given the circus that has been taking place here for two-and-a-half years with a continuous reboot, people can already seek a little rest.

Now that such a set of important drafts are on the agenda, making the meeting run this way is actually absolutely regrettable. What you give out of hand in the committee, you may in the future break up acid, because you make it the secretary of state and the minister simply that that is the course of affairs, that if they load the agenda but enough, you will follow and without any criticism carry out and approve what they present to you.

But let me talk about two things, substantially and fundamentally. I did my job. First of all, I want to talk about the tax shelter. I have read the report.

For the sake of clarity, our group is working together to review the system to extend the measure to all cultural products. I am pleased that Mr. De Potter referred to gaming in the committee. I already submitted a bill in August 2008 to extend the tax shelter to the video game sector, as it is one of today’s creative leisure industries. It is a sector with a global turnover of 30 billion euros in 2007, which can easily compare with the music and film industries.

However, developing a game is expensive and will soon cost between 30 and 50 million euros. To earn that back, one must have already sold at least half a million copies.

From this, it is wrong to conclude that our country best keeps its hands away from game development, given the high level of education, the number of educational games developed in our country and our strong creative tradition not only in terms of comics, but also in terms of the film industry. The film industry – there is a very nice parallel – thrives very well under the tax shelter. The combination of creativity and specific training programs has also enabled us to win international prizes and throw high eyes.

Game development can also bring investments to our country, create jobs and perfectly fit in the pursuit of a knowledge economy, as set forth in the Lisbon objectives.

Our bill is here. Mr. Secretary of State, we continue to work together to come to a repair of the tax shelter. We hope that the time is finally ripe to involve the gaming sector and that that flourishing positive sector in our country will get the opportunities it deserves. This sector is now heavily pressured by competition from the Netherlands and from France, where there are already tax preferential regimes. We see that from West Flanders and even from Wallonia several young talents just cross the border to find a job there, while they should actually get all the possibilities here.

For all clarity, a resolution on this subject was adopted in the Flemish Parliament a few years ago with the support of the Green Group. We hope that we can either quickly start the discussion of our bill in the committee, in a good way, or move forward with the reform faster.

The second part of my second presentation is a little more problematic. This is about the Savings Directive. You will see that we have submitted an amendment, signed with the colleagues of sp.a. This amendment concerns Articles 12 to 15 of the Savings Directive. In the program law, some amendments have been proposed for these articles. These changes are the result of the transition from a system of source tax to a system of data exchange for the application of the Council of the European Union Directive on the taxation of income from savings in the form of interest payments, in particular the Savings Directive. Article 338a derives from that Savings Directive and a number of articles from the Savings Act are repealed here. Article 338a now refers to the Savings Directive itself rather than the Savings Act.

The existing delegation to the King is imperfect. Indeed, as regards the territorial scope of Article 338a, it is also necessary to take into account the dependent and associated territories, the territories with which bilateral agreements providing for a reciprocal obligation have been concluded. I know this is technical, but it is important. After all, it is more specifically about the agreements that our country has concluded with the Dutch Antilles, Aruba, the Guernsey Islands, the island of Man, Jersey, Anguilla, the British Virgin Islands, Montserrat and the Turkish islands and Caicos Islands.

Those who follow the issue know that these are often countries where the tax tax, to say the least, is quite flexible.

The third paragraph of Article 338a provides that the information obtained from other Member States in implementation of the Savings Directive by the administration competent for the establishment of the income tax may be used for the correct determination of the income tax. The fourth paragraph adds that Article 318 does not apply to the exchange of information regulated in paragraphs two and three.

The preparatory works do not explain why these paragraphs are necessary. Why would they be necessary in order to be able to use information lawfully received as a result of the Savings Directive for tax purposes? It is also unclear why the mere transposition of the Savings Directive would not be sufficient for this purpose. The government thus believes that it should be abolished.

Article 318 does not apply to information obtained from foreign administrations. Article 318 stipulates the following, and I quote: "In derogation from the provisions of Article 317 and without prejudice to the application of Articles 315, 315bis and 316 the Administration is not authorised to collect information in the accounts, books and documents of banking, exchange, credit and savings institutions for the purpose of taxing their clients". According to the government’s interpretation, Article 318 therefore has no extraterritorial effect and therefore has no direct influence on the collection of information by the foreign tax administration in the accounts of foreign financial institutions. The opposite claim would constitute a violation of the territorial sovereignty of the foreign tax authority. Article 318 does not prevent the foreign tax administration from collecting information relating to foreign bank accounts and spontaneously transferring it to the Belgian tax administration, nor does it prevent the Belgian administration from using it to determine the tax. The administration is therefore entitled to use the information obtained on the basis of Articles 315, 315bis and 316 for the purposes of taxing those third parties.

The Government thus considers — if I have interpreted the various provisions correctly — that the law does not restrict the use that can be made of lawfully obtained data. Accordingly, the third paragraph of Article 338a is unnecessary and is repealed. If that interpretation by the government is not entirely correct, then there is no legal basis for using that data in Belgium. That is the danger.

That’s where the angel is, because then it’s guessing the attitude of the court. According to the court, the tax law must be interpreted very restrictively. Everything that is not explicitly permitted is prohibited. This is the letter and spirit of the law. Furthermore, the information obtained under the Savings Directive may result from unreported professional income, donations or inheritance. It is therefore appropriate to provide that the information received by all tax administrations is useful for the correct determination of all taxes. To date, Article 358a, paragraph 3, provides that this information may be used for the determination of income tax.

The draft law on tax and various provisions that we are discussing now provides for the abolition of that paragraph 3. Therefore, a new paragraph is needed to make the law final and to avoid any dispute before the court about the possible use of that information. We see that the government has not done that. We – and the Flemish socialists support us in this – do not want to remove paragraph 3, but to maintain, and even expand. This is the core of our amendment.

The conclusion of my rather technical explanation is as follows. Through your interpretation you opened the possibility of disputes before the court and disputes over countries where the tax legislation is ⁇ lax, not to say tax havens. In fact, you should have closed the law.

My colleagues of the majority, this is not just a detail. If the majority in the committee had taken the effort to properly review this bill, they would have seen that we are on smooth ice. Now we are doing the opposite of what we claim. This is not good governance. We therefore urge you to support our amendment in this regard, otherwise you will go against the logic of what the public opinion requires and against the logic which is often proclaimed here in beautiful words, but which in practice is often overlooked. In practice, you create legal backdoors to enable abuse, rather than prevent it. You want to remove an article that actually needs to be expanded.

I urge you to support this amendment. This way you can recover the missed opportunity from the commission and take your role back seriously.

I see that the members of the majority are ⁇ few in number, just like in the committee. Nevertheless, I hope that the members of the majority parties present will tell the story of today and by the time of the vote will have reviewed the content of the amendment and the content of the program law on the Savings Directive.

Does anyone ask the floor in connection with the amendment submitted by Ms. Almaci?

Mr. Speaker, I would like to point out that on its first request, the Government has decided, for budgetary reasons, to extend the tax shelter system to other sectors than those currently targeted. This is not included in the budget. The second request concerns the exchange of information with the countries with which we have agreements. The legal basis is therefore contained in these agreements which are voted in parliament according to the OECD standard. Therefore, we do not need to correct the text in question.

Mr. Speaker, I gave a very circumstantial explanation. Those who had read the draft containing various provisions correctly could have followed the content of my presentation.

The logic of the Secretary of State’s explanation or of what he intends to defend here, however, is not in itself with the technical content of the text.

I therefore propose and hope that the Government will promptly make a correction to the relevant provision. I also hope that we do not have to wait five years after an evaluation to correct what is already clearly flawed.