Proposition 53K3394

Projet de loi modifiant les articles 121 et 122 de la loi du 2 août 2002 relative à la surveillance du secteur financier et aux services financiers en vue de régler les recours contre certaines décisions prises par la FSMA en vertu de la loi du ... relative au statut et au contrôle des planificateurs financiers indépendants et à la fourniture de consultations en planification financière par des entreprises réglementées.

General information ¶

Submitted by

PS | SP the Di Rupo government

Submission date

Feb. 21, 2014

Official page

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Status

Adopted

Requirement

Simple

Subjects

consumer protection financial policy financial occupation investment transaction savings terrorism access to a profession money laundering

Voting ¶

Voted to adopt

CD&V Vooruit LE PS | SP Open Vld MR

Voted to reject

Groen Ecolo ∉ N-VA LDD VB

Party dissidents ¶

• Peter Luykx (CD&V) voted to reject.

Contact form ¶

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Discussion ¶

March 26, 2014 | Plenary session (Chamber of representatives)

Full source

by Mr. Christophe Lacroix, rapporteur, refers to his written report.

Mrs. Christiane Vienne had signed up, but she is not there.

The word is for mr. by Georges Gilkinet.

Mr. Speaker, Mr. Minister, I am pleased to see you present at the plenary session, since, for legitimate causes of illness, we had to hold this debate with the Secretary of State, Mr. by Bogart. This is an important text in which I reveal the difficulties that I have ⁇ in the Finance Committee and which I will repeat here.

I would like to speak first of all about the evolution of the financial sector which is the context of this bill. The emergence of a function of the type that would be recognized through this law, that is, what you call the financial planners – I will return to it because I challenge this designation –, is witness to a notable evolution in the financial sector and the appearance of increasingly complex assemblies, sometimes at the limit of legality, often at the expense of collective interests and state financing, almost always for the benefit of a few large fortunes that have, on the one hand, the interest and, on the other, the means to receive such advice and to design such assemblies.

Mr. Secretary of State, you arrest Mr. by Gilkinet. When you talk, it stops. It’s like Duracell batteries.

The [...]

Mr. Secretary of State, this really does not pose any problem. I wish you a very good afternoon.

In view of the conditions set for the recognition of these financial planners, we can see some progress, since one can no longer self-proclaim financial planners since conditions will be set for access to this profession. It can also be seen that the recognition granted by law to these advisors is a gift that is given to them and that will allow them to continue and amplify their work for the benefit of tax optimization. This is what is taken text in the document, sometimes also at the expense of the general interest.

We have received, in the Finance Committee, various interlocutors responsible for the fight against tax fraud, whether they are lawyers who represent the State in complex cases, prosecutors general or members of your administration. These really have difficulties with those quasi-legislators who can issue so-called legal opinions and who can contradict or construct the tax doctrine in a sense that is not that of the general interest.

During the discussion at which you did not attend, Mr. Minister, I introduced two amendments that could have balanced things.

The first is to decide on a more neutral designation than that of financial planners, financial planners, even though I hear that it is used and recognized internationally. For example, they could be called “financial advisors in property management”, which is a more neutral term and which does not imply that it is about doing tax optimization but to give, as do notaries or other men or women of law, advice to citizens who want to manage their property in the best of their interests. The notion of financial planners implies that the goal is at all costs to arrive at this type of legal assembly that is not always in the general interest.

The second amendment introduced, which is in line with the logic of some recommendations of the Commission of Inquiry on large-scale tax fraud, aims to establish an ambitious system of penalties in exchange for this recognition that will be granted to those financial planners who help taxpayers to commit tax fraud. It is about making them eventually co-responsible for their own income from fraud facts they would have helped commit.

I think that if we had chosen a more neutral designation, which underlies less the objective of tax fraud, and if we had introduced a cleaner system of sanctions, in the event that we actually exceeded the permissible limits, we would have had a more balanced text.

These are our two main remarks regarding this text and we will resubmit the amendments submitted in the Finance Committee to try to prevent the production of a new machine that reduces state tax revenues.

The third point is of less importance. Nevertheless, the State Council notes – and we share its reading – that the assessment power conferred on the FSMA for recognition, withdrawal of it, or sanction, is excessive. Indeed, many provisions are referred to regulations that the FSMA will have to take. There is no perceptible transparency as to the conditions to be met in order to be approved and continue to be. The same applies to the consequences of sanctions that would be imposed.

Overall, we believe that the majority has acted with some mildness in this area. It’s not that we don’t keep up with the current situation. We are aware of the abuses committed by some financial advisors against taxpayers, as evidenced by the case of the "Madoff Belgian". It seems to me that you have unleashed the red carpet here by creating a new mechanism that does not go in the direction of tax justice. Every citizen has the right to be advised by lawmakers, but this cannot be organized in such a perspective or in the absence of a clearer system of sanctions in the event that the limits of legality are exceeded in terms of tax fraud.

Mr. President, Mr. Gilkinet, it is obvious that this bill tries to fill a gap, of which we could have shared the finding before the draft was written. Per ⁇ we are not filling this gap in the way you would have dreamed of it!

The project has more than the merit of existing, because it tries to make your parliament accept a track, a refined path to the extent that already regulated professions are not concerned. Among them are not only the lawyer, the notary, but also the taxist, the tax council, which, in turn, is governed by a code of ethics not prohibiting financial planning advice. Furthermore, we target the professions that, at the moment, are not yet regulated but for which there is a legal vacuum, except for regulated companies, namely banks, companies and insurance brokers, who are subject to rules of conduct without being able to carry the title of financial planning.

Therefore, we protect a title in a criminal and administrative way. We regulate a shared monopoly and we impose rules of conduct also on regulated companies that will not bear the title of financial planning. I consider this solution to be fairly balanced.

I understand that you would have preferred a more neutral denomination, but the term "financial planning" does not refer to me either suspicion, or evasion of the law, or tax fraud. I would say, “Honni soit qui mal y pense” as regards this title. It is a matter of taste. In this regard, it is apparently not identical.

With regard to the risk of tax fraud, it is necessary to go a long way to see in this project an invitation to avoid a tax burden to a greater extent than at present. Precisely, the fact of imposing rules of conduct with regard to financial planning as a whole, which obviously also covers a certain dimension of taxation, is a proof of our desire to regulate, to protect the interest of the customer as well as the general interest, in so far as taxation and tax law are referred to by Article 26, § 1c.

Therefore, we do not avoid the problem; we try to solve it as much as we can, knowing that other professions – lawyer, tax advisor, tax accountant – provide tax advice under the auspices of ethical rules or behaviors to which they are subjected.

Within the framework of the relations between the tax authority and the regulated professions, in particular the numerical professions, I have tried to talk about a taxation process, namely the fact that on both sides, the tax administration and the numerical professions exchange information, together seek balanced solutions to problems facing the clients of the numerical professions with the tax.

Thus, among other measures, this taxation process provides that the names of people who behave irregularly are communicated to the other party: for example, institutions of the profession of the figure, such as lawyers and notaries, will take knowledge of professionals who, according to the tax office, have not behaved correctly from a deontological point of view. Conversely, the tax office will be informed of the names of officials who, according to the figures professionals and their institutes, did not behave correctly from a deontological point of view.

As for the blank cheque that you think we would have awarded to the FSMA, I leave this to you. According to us, this project has been very well elaborated, among other things, because the rules of conduct are not left to the independent determination of the FSMA or the profession of financiers, as is the case generally with a regulation of ethics: often then, we take refuge behind the mechanism of self-regulation. In this case, we are not acting in this way.

We really did not sin by a too narrow delegation; on the contrary, this project is well detailed. I am very pleased, Mr Gilkinet.

First of all, I would like to thank you for taking the time and effort to answer me as accurately and convincingly as possible. We have divergent opinions on this matter as well as on others.

I would like to add a few additional elements.

We actually voted in favour of the article that provides for the obligation to report to the CTIF of customers who would have behaviors that do not comply with the spirit of the law. I would just like to tell you that having audited the Chairman of the CTIF – the professions equivalent to the one that will be created – very few cases of this type are ⁇ . But the fact that the law is enforced by those commonly called the professionals of the number appeals to the CTIF.

Since we have not chosen a more neutral designation and a more stringent regime of penalties than the one provided for in Article 455 of the Tax Code, I am concerned that this device creates more problems in terms of good tax collection rather than solves them. I think it creates a status that can be used by interested parties for a purpose contrary to the public interest.

Furthermore, it is still permitted for financial planners to advise their customers regarding the purchase of one or another financial product, which is problematic.

As for the FSMA, I want it to work as well as possible. Only, whenever I asked you about sanctions taken either by the FSMA or by the National Bank against managers of banks involved in known files, about their fit and proper character as provided by the law, you answered me that neither the FSMA nor the BNB considered that there was matter for sanction. One may be surprised that those who led two of our four largest banks into the difficulties we know, with the consequences we know for public finances, are considered by the same bodies as still able to manage our banks.

Is the FSMA tough enough against those who do not comply with the law? Is the sanction system not too light in view of the issue? In any case, this is our conviction, and it seems to us that if the majority had incorporated the recommendations of the Investigative Commission on major tax fraud, the text would have been better.

Therefore, despite your conviction in defending it, we will not vote it positively tomorrow.

Thank you Mr Gilkinet. Have you introduced any amendments?

I have just announced them.

But they will have to be introduced, because advertising is not enough.

I would like to mention the two amendments that were introduced during the discussion. Amendment No. 6 was submitted at a meeting of the Finance Committee. Thank you, Mr. President, for reminding me of my duties.

As I am told from time to time that reports must be deposited on the banks, I remind you that amendments must be introduced.

As far as we are concerned in the Commission...

Yes, but that’s not an excuse.

Amendment No. 8, Amendment No. 9 and Amendment No. 10 are also resubmitted.

In which article?

Amendments 8 and 9 relate to Article 41/1 and Amendment 10 relates to Article 41/2.

What about Amendment 6? In this way, I will be able to make an announcement in proper form.

Mr. Speaker, we will succeed. This is in Article 2.

I thank you for your collaboration.

These are primarily the services I try to help.