Proposition 53K2874

Projet de loi modifiant le système de régularisation fiscale et instaurant une régularisation sociale.

General information ¶

Submitted by

PS | SP the Di Rupo government

Submission date

June 11, 2013

Official page

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Status

Adopted

Requirement

Simple

Subjects

tax tax return tax evasion tax system fraud fine social-security contribution social security organisation self-employed person

Voting ¶

Voted to adopt

CD&V Vooruit LE PS | SP Open Vld MR

Voted to reject

∉ N-VA LDD VB

Abstained from voting

Groen Ecolo

Party dissidents ¶

• Peter Luykx (CD&V) voted to reject.
• Olivier Maingain (MR) abstained from voting.
• Damien Thiéry (MR) abstained from voting.

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Discussion ¶

June 27, 2013 | Plenary session (Chamber of representatives)

Full source

I am referring to my written report.

Mr. Speaker, Mrs. Minister, Mr. Minister, colleagues, our group can perfectly find themselves in the government’s decision to abolish the exemption from criminal prosecution for tax fraud after a fiscal regularization by the end of the year.

What we cannot find is that from 15 July until the end of the year the current system of tax regularization is still being extended. Not only does it provide for tax amnesty, but it now also provides a free guide for money laundering resulting from serious and organized tax fraud.

The extension to serious and organized tax fraud shows, in our view, the bankruptcy of ten years of tax fraud policy. We have the impression that this government itself no longer believes in the fight against fraud. Otherwise, it would not allow serious fraudsters to get rid of a 35 % fine.

Let us also look at the present draft legislation legislatively. The State Council’s opinion contains an extensive package of comments on the draft law. Two major violations repeatedly occur in the fight against fraud.

The first is the violation of the principle of equality. The Council of State considers that equality is violated because the fine rate does not distinguish between simple tax fraud and serious and organized tax fraud in the case of tax-expired capital.

A second major violation that we have repeatedly pointed out here is the violation of human rights. These are violated by the formulation of a fraud scheme that one is obliged to submit as part of the declaration, which contradicts the prohibition to accuse himself or, as it is so beautifully called, to commit self-crimination.

There were comments, but I will not repeat them all.

In addition to the comments of the State Council, there is the following. Belgium has signed the Warsaw Convention and has also agreed to criminalize money laundering from tax fraud, to detect the money, confiscate it and declare it confiscated. By now introducing an exemption from criminal prosecution for money laundering from serious and organized tax fraud, Belgium violates international obligations.

Since international treaties prevail over national laws, the question arises, of course, whether the prosecutors who are exempt from prosecution can not without delay abandon them. In addition, if one knows that the fraud scheme that is added to the regularization can be requested by and passed on to the parquet, then it will be a cold trick for the parquet to ultimately still prosecute those who regularise and those who help in doing so, for example the bank that passes the data or the taxist who assists his client, eventually still for money laundering.

This is a beautiful legislative work, which violates the principle of equality and human rights. It is legislation that aims to provide the taxpayer with legal certainty throughout the story. We also know the story of legal certainty: legal certainty does not exist in this country.

Mr. Speaker, Mr. Ministers, Mrs. Minister, colleagues, it will not surprise you that we will approve the present bill with great conviction. Finally, the fiscal regularization will come to an end.

Over the past six years, we have had time to normalize. People will still have the chance to spontaneously repent until the end of 2013, though under stricter conditions than before. But then it irrevocably ended. Colleagues, for that very reason alone, we will support this bill with great conviction.

Over the past few months, a lot has been written about this government plan. To the oatmeal came mainly tax lawyers telling that what the government planned was far too strict. They argued that after the entry of the tightened regime no one would still want to regularize. If that is the case, then it is so. That is to say, the permanent regularization will go a little faster, and in fact it would already be over.

I do not believe their claims. Not only must friend and enemy acknowledge that the current government’s fight against tax fraud has really caused a trend break with the past. The trend breaking is one thing. However, there is more.

The world around us has changed fundamentally. In an international context of increased transparency and exchange of bank information, it is becoming increasingly difficult to keep black money hidden. The fight against tax evasion and tax havens is continuing at an unprecedented pace worldwide. Countries such as Liechtenstein, Luxembourg, Switzerland, Jersey, the Cayman Islands and Singapore have finally given up their principled neglect against the automatic exchange of intelligence. There is a completely different climate than before.

The European Commission has also recently put on the table a substantial expansion of this exchange of information.

The current stage of regularization is indeed strict, but that is good too. The only root is indeed that regularization will no longer be possible after 31 December 2013.

It has irrevocably ended. In the new international framework and in the light of the progress made by the government, this is not more than fair.

As usual, the colleagues of N-VA say a, but they actually do b. They now accuse the government of laxity in addressing money laundering practices, but if in Parliament matters need to be approved to end the money laundering practices, to end the regularization or to fight fraud, then they don’t give home, then we only hear criticism and then they vote against.

Without the support of N-VA, several bills have already been adopted in Parliament and have already had a lot of effect. To those who say that this regularization would not be successful, I can answer that we now see that a lot of people are going to regularize. The budget provided for this has long been exceeded.

We will therefore approve the present draft with great conviction. Some colleagues will vote against and some colleagues will approve it with slightly less conviction. In any case, we hope that the government will continue on this path, so that we can finally put an end to the great tax fraud that has been applied in our country in the past.

Mr. Speaker, Mrs. Minister, Mr. Ministers, Colleagues, the present draft extends the scope of the single discharge declaration, the EBA. We will support the draft.

Following previous drafts, I have already said that we are absolutely in favour of a fair tax at an acceptable rate paid by everyone. In the future, this can only lead to a reduction in the tax burden and a model that is somewhat fairer than what we face today.

Not only is the scope of the EBA extended, but the form of the declaration has also been changed.

Mr. Minister, I would like to ask you a few questions. We have already discussed this in the committee, but I still struggle with a few questions to which I would like to get a clear answer.

It is true that the regularisation declaration will now have to be supplemented by a fraud scheme. This fraud scheme will be delivered to the Contact Point regularisations, which it reports to the CFI. In certain cases, the fraud scheme may also be requested by the investigative judge or by the prosecutor’s office, depending on the file.

Mr. Minister, first, the draft accounts for the submission of that fraud scheme to justify the choice of the type of application for regularisation, while the draft clearly states that only the taxable person is responsible for the choice of the type of regularisation declaration that he submits. The draft also stated that the contact point does not have any investigation or assessment powers in this regard. Can you explain exactly what the use of and the reason for adding the fraud scheme?

The second question is the logical consequence. I would thank you if you could confirm that the principles laid down in Article 6 of the European Convention for the Protection of Human Rights, as well as the jurisprudence and the principles established in their application as a result of the judgment in Saunders, effectively also have a tax transition effect and apply to this draft. In other words, the information obtained from the taxable person by the fraud scheme in an administrative procedure, to which his participation by submitting that fraud scheme is absolutely required and necessary, can therefore no longer be used subsequently to sanction the taxable person without infringing his right to silence? Mr. Minister, it would at least strengthen the trust of the taxpayers if you could answer this last question positively.

Mr. President, dear colleagues, Mr. Minister, Mr. Secretary of State, I find it important to recall first and foremost the history of the issue of tax regularization.

Legistically speaking, it all began under the violet government, between 2003 and 2007, with the very badly named “Single Liberation Declaration”, which was far from unique. At the same time, the rules for regularization of refugee candidates were tightened and the controls of social benefits and job seekers were modified. Here is the context.

At that time, the Ecologists of this parliament, including Ms. Gerkens, strongly opposed the law granting so much clemency to fraudsters and the wrong signal given, on the one hand, to all those who pay their taxes correctly and, on the other hand, to the fraudsters who were offered a way to get out of it carefully, ⁇ ining their sense of impunity.

This is a constant in the fight against tax fraud. Indeed, more seriously, this system that was supposed to be unique, by definition, which was supposed to be only a weapon at once became permanent thanks to the program law of 27 December 2005, adopted by the same violet majority, i.e. socialist-liberal. Needless to say, we were not more favorable to the perpetuation of this mechanism, nor to the mission entrusted to the Service for Early Decisions to welcome tax repentance.

On the contrary, the permanence of the device has further accentuated this unpleasant impression of impunity, of clemency towards fraudsters. I am always surprised, Mrs. Van Cauter, how you and others can defend those who have the uncivil behavior of choosing not to pay taxes. Incivil behavior, Mr Van Biesen. In other cases, you are showing much less understanding; I regret it and it strikes me regularly.

All this therefore left an unpleasant impression of impunity and mercy. In addition, as discussed at the moment with our Minister of Justice, there appeared an impression of inefficiency of our judicial system in the context of combating tax fraud.

It is because we are unable to analyze the files, to draw conclusions, to put them on the agenda and to have a judgment within reasonable time that we must go through any regularization systems.

Beyond the impressions or a posture that some will call ideological, we have accurately analyzed – that is why I took my files – the way this regularization took place. In particular, we found that, in the framework of the mechanism established at the end of 2005, tax repentants were not obliged to communicate the origin of the regularised funds – they were choosing one or the other route – and that there was, therefore, – this is clearly evident in the figures of the Service for Early Decisions – a overweight among the categories of regularized capital income (interest), categories for which the levy and tax penalty are obviously the most favourable, which could lead to a regularization at a rate below 6%. 80% of the people concerned (four euros out of five) chose this path with, as a result of the regularization, a quite reasonable tariff – you will agree with me – and total impunity. So most repentants get out, since 2006, at especially generous tariffs, and ultimately, shocking in view of the gravity of their fault – I spoke of inquisition – and the importance of the budget challenge for our state and all the decisions made in this matter by the government.

This is why we submitted – to analyze is one thing, to propose is another – on 13 January 2010 and re-submitted on 11 February 2011, a bill aimed at reforming the system. On the one hand, by obliging repentant taxpayers to communicate the origin of the regularized funds once they initiated a regularization procedure with the Service for Early Decisions. The objective is that the appropriate levy rate is applied. In Belgium, there is not the same tax on income from labour as on income from capital. This is one of the problems of our taxation.

On the other hand, by choosing to gradually shut down the regularization procedure with a gradual increase in the penalties applied, in such a way, mevrouw Temmerman, to penalize those who would delay in regularizing their situation; to de facto shut down the mechanism of fiscal regularization by applying the rates we propose in our text of law.

Mr. Gilkinet, if I read it correctly, according to your proposal, one can regularize forever. There is no end to the way of regularization. You do increase the fines, but the possibility still exists. On the contrary, the proposal that is being discussed now ends the regularization in December 2013.

Mr. Speaker, I will address this. Mrs Temmerman, if you have read our proposal correctly, you know that we are proposing a fine that will make the system de facto no longer useful for fraudsters.

I would not interrupt my colleague Gilkinet at all, but it was unclear for him to understand why Mr. Van Biesen rejoiced at Mrs. Temmerman’s comment. According to Mr Van Biesen, the next regularization will be something for the next program law. Your coalition partners, Mrs Temmerman, clearly have a different opinion on this.

The purpose of this arrangement is undoubtedly to combat all forms of tax fraud.

Alongside this bill and in the wake of the commission of inquiry on large tax fraud, we submitted a number of bills aimed at lifting the bank secret, discouraging and penalizing, if necessary, intermediaries, lawyers or others, who could help elaborate the fraud mountains. We also adopted the one-way system.

Our goal is, constantly, to make the fight against tax fraud effective and effective in such a way that we no longer need a mechanism of regularization, that no one is tempted by the fraud or that those who are, are sanctioned, and that finally the revenues of the federal state, very necessary in these difficult times, are increased from those 10 to 20 billion euros that escape it annually by taking advantage of those incivics who refuse to contribute to collective needs and solidarity.

It is in this context – which I have long recalled but it seemed important to me – and in this perspective of more effective fight against fraud that we analyzed the government bill by giving it two good points – I said it in commission and I have no problem repeating it here. You have to be intellectually honest, Mrs. Temmerman, Mr. Crombez, Mr. Minister of Finance, even if you were not in the commission.

The first good point is that this project envisages the system’s shutdown on 31 December of this year. In this regard, I will say two things. Primo, it was time! It is, however, since 2004 that you have offered this opportunity to fraudsters to get out of it rather on its own! Secondly, I hope that by 31 December, on all levels of the tax administration, everything will be in place to avoid the development of new fraud mechanisms and to effectively combat – finally – this fraud.

Mr. Secretary of State, Mr. Minister of Finance, it is not by applying linear staff cuts within the SPF Finance and by preventing the first-line control that you will ⁇ , even if you strengthen the elite at the level of the Special Tax Inspection.

The second good point is that the text provides, in its article 6, the obligation to transmit to the Service of Advanced Decisions a concise explanation on the fraud scheme. This corresponds to our concern for the effective accounting of the origin of the funds and the penalization, if necessary, the most correct rate of what would have been evaded taxally but also, eventually, the involvement of those who would have been complicit of this type of assembly. In this regard, I would like to denounce the resistance of some colleagues to this device. N-VA colleagues and liberal colleagues are opposed – Ms. Van Cauter has just repeated it – to this scheme that we consider indispensable.

Colleague Gilkinet, every year we provide €55 million in legal aid to remind people, among other things, that they have the right not to incriminate themselves. This is a general legal principle.

All I ask is that the legal principles be applied in the same way and unambiguously, including in the case of tax fraud. The other principles must also be applied. It is only normal that you face interest rates, increases and possibly fines if you pay your taxes too late. The economy we want is an economy that revolves around who has the best product and who provides the best service, not about who is committing tax fraud in order to unfairly compete with those with whom it meets in the market. This is not the society we want. We want a society in which all legal principles are applied equally to everyone, including tax fraudsters.

Madame Van Cauter, I think that your awareness of human rights is variable geometry depending on the person concerned. In addition, it is a privilege that is given to people who have cheated. I will develop it in connection with the criminal aspects of this text.

It is a privilege that is ultimately granted to certain people who have not respected the law, since they have the opportunity to get out of it on their own, without being judged. I think the legislator should be able to be demanding in this area. It must therefore be able to identify, as we have been asking since 2004, the origin of these funds and fraud so that the appropriate rate can be applied, regardless of the taxpayer concerned. This is the least of the things.

This article seems indispensable. In the exact opposite of Ms. Van Cauter, we believe that he should be automatically communicated to the CTIF, the Financial Information Processing Cell. Thus, all responsibilities could be established, if necessary, in collaboration with the Prosecutor’s Office. When I say “all responsibilities”, I also mean those of people who advise candidates for fraud. In addition, the CTIF’s expertise would be strengthened by a review of these schemes. This would enhance its ability to fight fraud and would also contribute to fair and comprehensive tax collection. As a committee, I have submitted an amendment in this direction, which I re-depose today in plenary session with my colleague Meyrem Almaci. I count on your support, of course.

After the flowers, Mr. Secretary of State, I have to submit you some criticism about elements that pose problems to us. The system has existed since 2004. We have submitted texts to change it. We believe that a clear signal should have been given much earlier, but better late than never.

Then, your text is fragile in view of the State Council remarks that have been very little taken into account by the government and that lead to provisions that may result in appeals or disputes – which is never desirable, because the solidity of such a device is crucial.

I come to the third element; I keep the best for the end. This will lead to an influx of requests to the Early Decisions Service. He must handle the files without having the means. If we look at the number of cases processed annually and those that should be currently, we quickly realize it.

Beyond the volume, there is the seriousness of the control carried out and that of the control over the control carried out by the Early Decision Service. Because of the influx of files, tax regulation should not be broadened even more than it has been in recent years. This particular period from July to the end of December, and ⁇ beyond, if not all cases have been processed, cannot constitute an excuse for a faulty processing of regularization files. This is one of our concerns, after the hearing of the Director of the Early Decisions Service, Ms. Tai, in the Finance Committee, on the occasion of the presentation of the latest reports of activities of its department as well as the state of the place in terms of tax regularization.

The most important point of criticism of the text is the extension, for the coming months, of the regularization of cases that could be the subject of criminal prosecution, with faults as serious as abuses of rights, false writing, abuses of trust or abuses of social property. You will admit that it is still quite serious. This possibility of regularizing income and capital from serious and organized tax fraud for a period of six months seems clearly unacceptable to us, especially with a fairly generous tax rate of 35%. It is definitely a very bad habit of this majority to do so. Rather than giving Justice the technical and material means to fight fraud effectively, escapes and opportunities for transactions without judgment are multiplied. I would like to mention the possibilities of amicable criminal settlement, which are shocking and that we have fought. We do not accept this expansion for the reasons already outlined. It is the consecration of the powerlessness of Justice to fight fraud, it gives a sense of impunity to the fraudster, and it is a bad signal given to taxpayers who pay their taxes correctly.

This is why we are submitting a new amendment in session to remove from this bill the provisions allowing the extension to criminal offences. This amendment will be submitted to your vote soon. The majority can still act in this regard.

What you propose goes a bridge too far. If we want to fight fraud, we need to give clear signals to fraudsters and those who advise them. Now it is the opposite that you do with the enlargement, even temporary, of the law.

Mr. Speaker, Mrs. Minister, Mr. Minister, Mr. Secretary of State, dear colleagues, with regard to the present bill, I can generally conclude that, if we look at the fiscal landscape, the gaps of the net are significantly reduced, both in this country and in the rest of the world. I refer to the abolition of bank secrecy in the event of a suspicion of fraud. There is the creation of the property register and the exchange of information between different tax administrations, services and countries is happening more and more.

These are step by step measures that demonstrate that the thumb screws are becoming increasingly tightened, even in countries where black money and grey money were traditionally welcome. Even in Luxembourg and Switzerland, banks want to improve their image; they encourage their customers, large and small, to confess to their local tax administration for the regularization of their capital, income and black money.

However, the possibility of regulating capital and income hidden abroad is not new. In 2004, and that’s been a while ago, the government launched a first campaign of fiscal amnesty, from which the procedure of the one-off release declaration, the EBA, emerged. This procedure allowed individuals to still regularize their depleted taxable income.

A year later, it showed how relatively the word was one-time. At the end of 2005, a new permanent regularisation procedure, also known as EBAbis, was then introduced. This regularisation procedure still allows taxpayers to spontaneously proceed to the regularisation of their tax situation.

Although less advantageous than the original EBA, this scheme expires in practice on Monday 15 July. Most likely it will then be on Friday before, unless the Contact Point regularisations will be open on the weekend before 15 July, which I doubt.

Those who want to whiten their black or grey cents should therefore hurry. After December 31, this year, it is finally done with fiscal black money and fifty shades of grey. It will therefore be the very last regularization, as stated in this administrative note, because from 1 January 2014, the gates of the Contact Point regularizations will be closed forever and forever.

But as usual, colleagues, never say never in politics. The past teaches us something different. Collega Van Biesen has already made the observation that we may have it back on our pants with the next program law and yet there will be another delay or arrangement. Who knows, the next government will come to mind to reintroduce a regularization procedure.

From the influx that is currently visible at the Contact Point regularisations, I think I have fully understood that there are still a lot of files to be regularized. There are also many complex files, and some fiscalists believe it is impossible to complete those files before the end of this year. Therefore, this bill provides for the possibility to provide an additional six months after the submission of the file to complete the file with the necessary evidence documents, documents and the so-called fraud scheme. I will return to the subject of this fraud scheme.

Within the framework of the discussions on the 2013 budget and the closure of the budget deficit, this Government has decided to adjust this regularisation procedure for the last time. The current tax regularization is therefore an amnesty of the last chance. This government has registered a revenue of 513 million euros in the budget for this purpose. It has probably been a deliberate strategy of the government to wait until the very last moment with a new legislation, which has caused the regularization movement in accordance with the existing procedure of EBAbis in the last few months in a stream acceleration.

If we look at the figures, colleagues, we note that during the first five months of this year more than 2,700 applications for tax regularization were submitted to the Contact Point for regularisations. This is a multiplication of the number of files submitted during the same period of 2012. Therefore, we can talk about a storm run. According to Ms. Tai, President of the Contact Point for Regularisations, the amount of applications under the EBAbis procedure in 2013 already amounted to more than EUR 300 million, which has already largely achieved the budget objective of this government. In this regard, Mr. Minister, the revenue can no longer be wrong.

For all clarity, colleagues, the possibility of regularizing your income through your own tax inspector will continue to exist. This method may even be appropriate in some cases because it provides the possibility of recovering, for example, the EU residential tax overpaid.

I will then immediately come to a first deficiency in the current system of tax regularization, namely the question of why this EU residence tax cannot be accounted for with this tax regularization.

The Luxembourg and Swiss residential tax are therefore not deductible through the proceedings at issue and are in fact a double tax. With the current regularisation scheme, the taxable person, after paying the due taxes and the fine, will have to recover his residence state tax through a separate procedure. Speaking of simplicity and clarity.

However, another legal text, more specifically Article 14 of the Savings Directive, is clear in this regard. “If the interest received by the ultimate beneficiary in the Member State of the paying agency is subject to a source tax, the state of tax residence of the ultimate beneficiary shall grant him, in accordance with national law, a tax receipt equal to the amount of the tax withheld. If that amount exceeds the amount of the tax due under national law, the tax residence State shall reimburse the excess amount withheld to the ultimate entitled.”

In this fiscal regularization, this principle is therefore apparently not deterred. It cannot be implemented in this regularization law. The intended adjustments to the regularisation law aim, on the one hand, to extend the scope of the last regularisation procedure and, on the other hand, to fix the end date, however relative, namely 31 December of this year.

The new tax regularisation procedure will now be open to private companies and legal entities subject to corporate tax. Regarding the income that could potentially be regulated, this government has decided to propose two types of regularization.

A first type of regularization concerns the small tax evaders, say the “keuter fraudsters”, who, for example, want to regularise income, such as the avoidance of mobile tax by investing money amounts abroad. They will be subject to the normal tax rate, increased by a fine of 15%.

A second type of regularization is intended for the “big tax evaders”, the so-called million fraudsters, who have made themselves guilty of serious and organized tax fraud and related crimes, such as misuse of corporate assets and misuse of trust. They will be subject to a 35% tariff.

The strange thing about the legislation presented is that there is no distinction between taxally obsolete ordinary fraud and taxally obsolete serious and organized fraud. Both are taxed at 35%.

If we study the text of the draft law more closely and put it under the magnification glass, then there are still some fundamental remarks to be made. If we talk about tax regularization, it is important for the Flemish Interest that, if a taxable person wants to regularize his black or gray money, such a thing happens in a framework of legal certainty, both on the fiscal and criminal level. When there is no legal certainty, taxpayers are always looking for a way out.

Let me give a brief overview of the main comments of the State Council. Regarding the regularization of succession rights, the State Council argues that only the Regions are competent, even in the case of taxally obsolete succession rights. The State Council considers that the distinction between the various criminal offences is not reasonably justified. The distinction between serious and organized tax fraud and ordinary tax fraud is not reasonably justified. A uniform tax of 35% cannot therefore be for the Council of State. The concept of "serious and organized tax fraud" is not clear for the applicants to choose between the rate of 15 % and 20 %. Additional clarity is needed. The State Council reiterates its criticism of the vague notion of "serious tax fraud".

There are also a whole range of points of criticism from the State Council that the government has not mediated, such as the notion of taxally obsolete capital. This is and remains an unclear fact. The Council of State considers it objectionable that the declarant himself must judge the tax-obsolete nature of his capital. The obligation to submit the fraud scheme the State Council considers a violation of the prohibition of self-crime or self-accusation.

As an excerpt, the State Council notes that the preliminary draft law requires a thorough review of the editorial legislative, which allows us to interpret between the lines that one should first read the manual "How do I write a legislative text?" before submitting the text to the State Council.

The main problem is, in my opinion, the difference in treatment between obsolete and non-obsolete resources. The State Council also raises questions in this regard, but the government apparently did not modify its text afterwards.

Non-ageable income is thus subject to the normal tax rate plus a fine of 15 %. Aged capital may be regulated in the last period at a uniform rate on capital.

Is it possible to tax outdated capital? Is there really a penalty here? It seems to me rather a one-time ⁇ high property tax. I would expect the obsolete income to be taxed instead of the obsolete capital.

The proposal aims to tax tax-expired capital at 35%. How is the tax-ageed capital calculated? The draft law defines tax-age capital, i.e. capital for which the tax administration can no longer exercise tax power as a result of the expiry of the deadlines. Can I understand from this that in quite many cases the obsolete capital will have to be divided into a portion of real capital and a portion of capital formed by obsolete income?

I can well imagine that the discharge of capital and interest is not a simple task, ⁇ not if the original capital was introduced, for example, in the year 2000. Should we apply some kind of fictitious interest rate or how should it be? In fact, most fraud files do not only cover black investment products, undeclared inheritance or black work. Many files will be mixed in nature.

Or should two files be submitted to the Contact Point for regularisations? A declaration of black investment income still using the ongoing EBAbis procedure, at least until 15 July 2013, and another declaration under the new scheme for the regularisation of old black money. It all seems to me a little confusing if you ask me, Mr. Minister. It seems to me rather to be a regularisation round à la belge.

In most cases, it will not be possible to compile the correct amount of interest. Two reasons are, for example, because one no longer has the billing documents or the borderells, because one has consciously or unconsciously deleted them in a dark month, or because the bank can no longer deliver them, since it is only obliged to keep the data of the last ten years.

More clarity is needed here, unless you assume that the declarant himself, with or without the assistance of a tax advisor or a tax lawyer – with the risk of being complicit – must assess it in honour and conscience. This remains an element of uncertainty. In your explanatory note, on page 14 it is stated: “The penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty-excluding penalty.

My question is, therefore, whether drawing up an application for regularization is equivalent to participating in fraud. If that were the case, I wonder who else will engage to help draft a regularization request.

The same applies to life insurance. In my opinion, this government goes quite briefly through the curve in the present bill by stating in Article 4 that “capital of life insurance is in any case subject to the rate of 35 %”. I really don’t understand why the government is so focused on life insurance here. I wonder, by the way, whether the contact point for regularisations has the authority to assess life insurance.

For example, what about life insurance that was set up in 2000 with perfectly legal capital? I think there is nothing to regularize. Even if the capital with which the insurance is insured was formed in large part from savings surpluses and only in part from interest or dividends, not to mention non-taxable surpluses, it seems to me that the same problem arises. It is not possible to impose a penalty on something that has never been taxable. I believe that in many cases the burden of proof will become a problem.

Before talking about the fraud scheme, the question arises how complete a regularization statement should be. We note that the opinions in Flanders are different than in French-speaking Belgium. Dutch-speaking lawyers are increasingly advising their clients to do the tax regularization as thoroughly as possible, of course provided the payment of a much higher fee. French-speaking lawyers, on the other hand, almost always tell their clients that a regularization of the undeclared income over the last seven years is sufficient.

The difference in approach, colleagues, is very simply due to a difference in culture and a difference in the policy of the prosecutor’s office in both parts of the country.

Much has already been done on the fraud scheme as well, especially on the fulfillment of the concept of fraud scheme, as Ms. Van Cauter correctly notes. The State Council has already expressed itself clearly in its comments on this subject. The scheme requires the taxpayers concerned to provide all information on the capital to be regularised.

In the procedure of the one-time exemption declaration, i.e. of the EBA and of the EBAbis, the description of the fraud scheme did not exist. It is a novum that has been included in the current regularization procedure.

I can quite understand that the government’s tightened stance derives from the fact that the purpose of the new arrangement is to determine whether there is a common or serious fraud. However, it is precisely at that point that the State Council could not find itself in the proposed legislation. The fraud scheme is contrary to a fundamental legal principle. It is impossible to force a citizen to blame himself. Furthermore, I would like to point out that the contact point for regularisations has no investigation or control powers.

The fulfillment of the fraud scheme also seems to be a straightforward concept. After all, the question that arises is what all should be included in the fraud scheme. Is it sufficient to indicate the Belgian bank accounts to which the funds have been transferred, or should the foreign accounts also be indicated? Should the fraud mechanisms be described? Should the transfer techniques of the funds be described? Should the structures be described in order to commit or facilitate the fraud or to hide the capital? All these points are not clearly indicated and are surrounded by a flou artistique.

For the sake of clarity, if a regularisation declaration has been found correct by the Contact Point for regularisations, an attestation shall be delivered to the declarant. Is it true that the file is subsequently delivered post factum to the CFI, with the content of the copy of the certificate and a copy of the summary statement with the exception of the fraud scheme?

We also know that the CFI is bound by the money laundering legislation. The CFI therefore always has the possibility to request additional information and therefore can also request the fraud scheme, which initially therefore will not be in the file. I remember that the Secretary of State stated that the CFI can apply one case by case. However, I suspect that the CFI, using the money laundering legislation to which it is subject, will consider that as an automation and therefore, from now on, will request all fraud schemes together with all certificates and the concise description.

Finally, I want to say something about criminal prosecution. That is and remains the ham question. What about the files with criminal prosecution? I assume that it cannot be the government’s intention that the criminal prosecution ends with a series of limitations. Whatever it turns or turns, Justice remains the weak link in the further handling of those fraud files. This was revealed in the questionnaire, when the Minister of Justice was again asked questions about an outdated fraud file.

Wherever there is a prosecution, it appears in practice that Belgium has a fiscal separation line because the approaches in the various judicial districts are not at all aligned. In fact, a presentation by BBI Director Karel Anthonissen shows that this country can be divided into five areas where the court has its own, specific approach.

In tax matters, the court of West and East Flanders appears to be the strictest. The court of Antwerp came in several tax cases with a correctional process as a stick behind the door to a punishment that earned hundreds of millions of euros. In Brussels and its surroundings, the classic train of inertia runs. In Wallonia, the situation is the most dramatic. The number of tax procedures in the judicial district of Bergen that have been successfully completed can be counted on one hand. In the judicial districts of Liège, Namen and Luxembourg there is almost no prosecution. A tax fraudster is rarely punished.

This is, of course, a situation à la belge that is no longer acceptable, because this line law is contrary to the Constitution. In terms of taxes, no privileges can be introduced.

In short, if we review this legislation globally, this will be a final fiscal regularization à la belge, with quite a few shortcomings and uncertainties that lead to legal uncertainty. That is also why the Flemish Interest Group will vote convinced against this tax regularization. I thank you for your attention.

Mr. Speaker, first of all, I apologize for not being able to attend the meeting because of circumstances. I will not have an entire debate here. We have already asked questions here in the plenary session over the past few years, and I have recently asked them to Minister Geens. Through the work we have done with colleague Gilkinet in the committee, we have made clear our position and our questions.

Long before I was elected to Parliament, I became acquainted with the EBA, the one-time discharge. Shortly after the first one-time release, the second one-time release came. Those two EBAs are a contradictio in terminis, given that the letter did not fulfill its meaning. Then followed the permanent tax regulation, which I have been dealing with over the past few years. After all, that permanent tax regulation had a lot of backdoors. A big part of the problem was that one could decide for himself whether or not to partially regulate. This created a very big problem. Thus, regularly in the press came the own tax inspectors, who said that this in fact leads to a regularization of a spotting rate.

Meanwhile, the network went much further. In 2010, 2011 and 2012, we saw, between the debates on Belgium on the OECD’s grey list, how the debate about banking secrecy began to live ever stronger internationally and how we struggled with it here in the House. In that regard, I find the double discourse of some parties here remarkable. In the historic debate in the Finance Committee on the abolition of banking secrecy, we had the only legislative proposal from the opposition. We have left the majority a space to submit in extremis proposals yet, even though no text was ready, to enable a sound and meaningful debate. That debate was then hijacked by the liberals, by attaching to the abolition of banking secrecy the extended friendly settlement, which was very broad. Today, it is used to arrange very extensive large fraud files in a way that puts everyone to shame.

I hate that same double discourse because at the same time the N-VA in the hearings in the Finance Committee regarding the abolition of the banking secret has invited the lawyer of the diamond traders, who had then come into agreement, to come to advocate for a friendly settlement. That is the system we are in today. We see that the court has a lot of trouble making justice happen.

We hear that double discourse here every time we talk about the foundation of Fabiola. Some may then fail to show their sense of justice to someone who ends up doing what lies within the lines of the law, lines drawn by the majority parties who have been in this majority for years and days. Then, however, they welcome with open arms the Frenchman Arnault, who also makes use of such foundations, and then they see no grit in it, even though they are French-speaking.

That double discourse is very disturbing to me. This also applies to tax regulation. All those years fighting against that backdoor, it couldn’t help. All those years we were on the grey list, nobody really had problems with it. I admit, there was a shot in the case. That is so. We have submitted a bill ourselves. I have references here to our bill in which a number of top tax lawyers did not call our bill more or less a confiscation. In fact, they indicated that in this case the BBI would be much cheaper. Those who say today that our bill had been a way out and that they are finally putting the barrier to the bottom and really taking action, may need to read our bill a little better. It was a bill that, long before we came here, put the finger on the wound. It stated that we needed a progressive rate, that we needed to close the back doors and that we needed to do something about it.

It’s finally here, there’s a deadline. I admit, there is a deadline. I am genuinely pleased that there is an end date, and that there is more or less a progressive element towards obsolete or non-obsolete and regarding the nature of the fraud. That is positive. This fraud scheme, which I did not expect, is also positive. One can see immediately who is having trouble with it: those who had a double language in all those other files over the past few years. They are having a hard time with that again today. Why ? In fact, it is not that difficult, we have to be able to explain it to the ordinary citizen in very simple words. A fraud scheme, of course, means that the one who wants to regulate his black money today will set up a schedule in which maybe a few other people will also stand, people who are not so repentant and may count on the widened friendly settlement if they are caught anyway.

God blessed that it would happen. That is why, in simple human terms, some oppose that element in the preceding text in a not so elegant way. However, I think this is a good element, which I support.

The penalty is severed. Our proposal was very clear and very categorical in this regard. By December 2012, fees had to be paid far above 100% in order to finally bring the entire system to an end.

I am satisfied with the fraud scheme. I am satisfied with the end date. I am satisfied with the slightly higher penalty, although in light of what an ordinary citizen pays, of course, it still tastes wrang. You cannot get around there.

What makes tax regularization a tax amnesty is the fact that one buys his punishment. Criminal offences are covered with the mantle of love. As a result, one comes into a situation where crime money is covered with that mantle of love. Therefore, it is a criminal legal system in which one escapes with what one has done. This is the difference between regularization and amnesty. Apparently a lot of people think so. We have already received too many proposals in the Chamber aimed at buying off criminal cases. Given the increasingly closing network in Europe, it makes people wonder why those who committed serious acts – not those who obtained gray money in a family way through an inheritance – can again enjoy that regime until 31 December of this year. This is not fair to us, of course. It is not fair to the honest taxpayer and it is not fair to those who have not committed criminal offences.

As long as there is no complete abolition of bank secrecy with the establishment of an asset cadastre, as long as the extended amicable settlement remains applicable and as long as this transitional proposal creates the possibility to buy off a criminal offence, as long as we will continue to have a problem with such laws. I think everyone knows what is in the present file whose merit is, but it could have been different. It could have been accompanied by the closure of the large mazes in the net that one has created in the current reign period itself. It could also have been that some who always speak a double language here would finally be consistent. I therefore expect that in the coming months they will finally adjust their discourse about, for example, the foundations and expanded friendly arrangements and approve adjustments instead of always showing two different faces.

Due to a case of force majeure, I was not able to attend the meeting. Therefore, I will be very brief before passing the word to my colleagues, especially Mr. Crumb on this. I would like to speak on two points.

First and foremost, I would like to address the issue of the aid scheme, subject to completions by Secretary of State Crombez. It goes without saying that it is merely a tool — as explicitly stated in the report — and that it can in no way give rise to self-crime. This is a general legal principle that we abide by.

I have also repeatedly heard questions whether the adviser who would assist in completing the regulation statement and drawing up the fraud scheme should be considered a complicit. It is equally plausible, in the abstraction of what might have happened with the undertaking of the fraud itself, that a person who is helpful in completing a regulation statement cannot in any way be regarded as a complicit.

I would like to recall a few points, because they always come back.

First, the general point on the second part and the additional crimes. I have already given the example in the committee, but I will repeat it according to the statements of some members. The reason why we took this piece is best illustrated by the example of grandchildren inheriting shares in a medium-sized enterprise where a fraud crime was committed decades ago, which does not age. The N-VA group spoke of serious fraudsters. The government absolutely does not share that opinion and find it useful to give those people a chance to get clean in a reasonable way. They themselves have not committed any act, except the inheritance of a non-ageable crime.

Second, it doesn’t help to repeat something wrong six times to make sure it gets right. I would like to give a few examples of this. I am speaking to the Minister regarding the fraud scheme. Ms. Wouters said that the fraud scheme can be transferred to the CFI. I repeat what I said in the committee, knowing that this is not the case. I have listened to you, I do it very intensely, out of interest. However, it is not correct what you say, because the CFI does not get the fraud scheme.

Third, the double rate. Based on what the State Council has submitted, an adjustment has been made in the explanatory memo to clarify that when it comes to money laundering legislation, there is no distinction between serious and non-serious fraud. Therefore, the object does not propose to have two tariffs there. It is not enough to repeat that point ten times to make it right. It just isn’t right.

I come to the last point — even in this case a press release does not help — in particular the Warsaw Convention. The people of the CFI were present in the committee. There they explained to us and the Minister of Justice that there is a procedure for the GAFI countries. That procedure existed with the previous one, it was followed with the initial design and it was recently followed in the custom design. For the GAFI countries, it is sufficient to submit the draft to the GAFI, which evaluates it. The GAFI has no comment on what we are doing here. The conclusion that a problem may arise, as described in your press release, is pertinently incorrect.

Mr. Speaker, I think that this has repeated some important points from the good discussions in the committee and the plenary session. This is, for the last few months, an important project. It is important not to create confusion in complex situations. I would like to emphasize that we are very clear on these points. The aforementioned points, such as the comments of the State Council, the fraud scheme, the legitimate question of self-crime — which must be clear — and the Warsaw Convention, do not pose any problem.

Mr. Crombez, I have said very clearly that the fraud scheme can be transmitted. This was also stated by Secretary of State Verherstraeten. If the CFI finds that something is wrong, then the fraud scheme submitted to the Contact Point regularisations can still be forwarded to the parquet. I said so. I have absolutely not said that the fraud scheme goes to the CFI. This for correction.

As for the Warsaw Convention, please note that it is not relevant here. Within the GAFI countries this was indeed no problem, but the Warsaw Treaty has to do with the Council of Europe. I would like to repeat what I asked in the committee. Has the Council of Europe been consulted on this draft law? Then there was only the answer that no comments had been received from the GAFI countries.

To the question whether the fraud scheme does not involve self-crime, Minister Geens has today answered very clearly. I also believe that the colleagues of Open Vld were not sure whether the answers given in the committee were correct. I see colleague Van Cauter knocking. She apparently also thinks that Minister Geens has given a much clearer and more accurate answer here than what we have heard in the committee. Ladies and gentlemen, I am very sorry that you were not present at this meeting. You have made clear that the fraud scheme cannot be used to condemn other people.

Ms. Wouters, you are rightly asking a question about the Council of Europe. It is based entirely and solely on the evaluation of the GAFI. I have not been clear about this. The GAFI has evaluated the draft each time and has not made any comments. The Council of Europe does not require a separate procedure. For the GAFI countries, it is based solely on the assessment or comments of the GAFI. The procedure at the Council of Europe has been accomplished, as the procedure at the GAFI has been accomplished.

Mr. Secretary of State, thank you for the further clarification. This is also clarified.