Proposition 54K2199

Projet de loi modifiant les articles 4 et 243/1 du Code des impôts sur les revenus 1992.

General information ¶

Submitted by

MR Swedish coalition

Submission date

Dec. 1, 2016

Official page

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Status

Adopted

Requirement

Simple

Subjects

right of asylum tax rebate foreign national tax law tax system political asylum

Voting ¶

Voted to adopt

CD&V ∉ Open Vld N-VA LDD MR PP VB

Voted to reject

Groen Vooruit Ecolo LE PS | SP DéFI PVDA | PTB

Party dissidents ¶

• Olivier Maingain (MR) voted to reject.

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Discussion ¶

Dec. 21, 2016 | Plenary session (Chamber of representatives)

Full source

Mr Luk Van Biesen, rapporteur, refers to his written report.

Mr. Speaker, Mr. Minister, 4 million euros, this is the gain you will earn to distort the Constitution and to distort the fundamental principles of our tax system. 4 million euros, that is the price, which costs a violation of the Constitution. Why Why ? To introduce a discriminatory provision that will explicitly target a very particular category of the population: asylum seekers.

Very often, when you amend the Income Tax Code to settle specific situations, it is to grant advantages. Here, you are submitting to us a bill that will have the effect of removing a right to the population category I just talked about, namely, more precisely, the tax credit related to the presence of dependent children.

All this does not honor you. We would almost come to wonder whether the 4 million euros you are going to recover will not be used to pay Mr. Francken’s mandatory fines, finally, since at the bottom, we are again in this subject: asylum seekers, refugees, people who fled war scenes and do not come to us for pleasure, who are unrooted, who, therefore, are already in a situation of precariousness, waiting for an administrative decision that takes too long to come – and that is not their fault.

Meanwhile, while these people must be considered as residents in Belgium, even if it is on a precarious basis and waiting for confirmation, you will make it kinds of second zone taxpayers, if I can say.

Why do you violate the Constitution and why do you twist the tax system? You twist the Constitution because – the State Council explains it very well – you do not sufficiently justify the difference of treatment that you reserve to them.

The Constitution explains that from the moment when a different treatment is reserved to a part of the population, that decision must be justified in view of an objective of general interest and be proportionate. You are asked to provide this justification. This will open an appeal before the Constitutional Court. The State Council is ⁇ explicit in this regard.

Why is this a derogation from the overall coherence of our tax system? Because the seat of the matter which is Article 2 of the Income Tax Code determines how a person is attached to the Belgian tax territory. This is the concept of the inhabitant of the kingdom. Permit me to quote again the aforementioned article: "As a resident of the Kingdom shall be understood: a) the natural persons who have established in Belgium their domicile or the seat of their fortune (...)". The Court of Cassation recalls that the notion of "tax domicile" must be distinguished from that of "civil domicile" and that there is, by presumption, a tax domicile from the moment that someone is registered in the population register, but that this entry – in the ordinary register or in the waiting register – is not a necessary condition for having a tax domicile in Belgium. The Court of Cassation recalls that this is a matter of fact. According to Article 3 of the Income Tax Code, the tax domicile is a notion of fact characterized necessarily by a certain permanence or continuity. The Court of Appeal of Ghent has also had the opportunity to look at the issue by specifying: “regardless of civil domicile and nationality and which is established and affirmed by a set of facts and circumstances, in particular the place of actual residence and, more precisely, the place where the household is established.”

So what is the core of the concept of tax home? It is the idea of a place of life, with a certain permanence or continuity.

It is the place where you live and meet people, where you go shopping and where you put your children to school.

This is where professional activity is carried out. In other words, the notion of tax home, notion of fact, is assessed according to the circumstances but we always find the idea that there is a home and the installation of a household.

Asylum seekers who are in your collimator, since you are going to take away a right from them, live and live in Belgium. As such, they must be considered as inhabitants of the Kingdom.

What are you doing in this bill? You are developing a restrictive approach to the notion of kingdom inhabitant. You do it because you have a moral stance. This moral posture considers that an asylum seeker should not have the same rights as everyone else.

You will say that you must understand that an asylum seeker does not work. Not working, he has no professional income and therefore there is no reason to give him the tax credit. Except that the child tax credit is not only aimed at people who work! It is aimed at taxpayers in general. If you have children, you have a right to do so. It is therefore necessary to separate the notion of taxpayer from the notion of taxpayer receiving professional income.

You say that an asylum seeker is never a taxpayer because he has no professional income and he lives from what is given to him. He is accommodated, he receives food vouchers or a food package. Eventually, he has no income. It cannot be a full taxpayer. Except that an asylum seeker who has a financial penalty and if there is someone who sponsors him, who gives him some money to improve his ordinary and that with that money he consumes and buys products, he will pay indirect taxation.

This means that you cannot start from the principle, and you cannot, as a general rule, assume that an asylum seeker is never a taxpayer. An applicant for asylum can be a taxpayer. In other words, when you develop a more general panorama, you notice that the argument that we are not going to give it a tax advantage because it is not a taxpayer does not hold the way.

Here are a number of elements that, I think, show sufficiently that the measure you are taking, which is a discriminatory measure that I have recalled that it does not honor you, is a measure that does not stand the way in terms of the fundamental principles of both the Constitution and our general tax system and the way in which an individual, a person, is subjected, connected, connected to a tax territory.

I can even go much further and I took this example during our exchanges in the Finance Committee. When I read the Income Tax Code, I mentioned the fact that one could attach someone to a tax territory through the tax domicile, which, I repeat, is different from the civil domicile. The tax home is larger than the civil home. But also if the person concerned has the seat of his fortune on the Belgian territory. This means that a person who does not live in Belgium on a daily basis and who does not have a civil or tax domicile in Belgium but who has the seat of his fortune in Belgium, that is, who manages his business from Belgium knowing that this management can be done remotely, can be connected to the tax territory and be subject to the tax of natural persons. This person who does not live in Belgium would be entitled to the tax credit for dependent child.

This means that you will treat him more favorably than an asylum seeker, against whom the only argument you mobilize is to consider that he is on a waiting register and not on the population register. And, for that reason, discrimination can be justified, which the State Council otherwise rejects.

This is the analysis I would like to submit to you. I have my morality and you have yours. You have your value judgments and I have mine. I’m not asking you to share them. I can still repeat that I find what you are doing quite scandalous. But I know I will not convince you.

On the other hand, in the field of law, your approach is also banal. And so, at least, if you do not hear our ethical arguments, at least listen to our legal arguments and withdraw this bill that, I would say, does not improve your image of know-how on the political and legal level but above all deteriorates your image from the point of view of an elementary conception of tax justice.

I thank you.

Here is a typical example of a nauseous and stigmatizing bill. The majority uses a bazooka to solve a non-problem, and practices its usual policy with regard to refugees: making them emissary goats.

In addition to being misleading from a legal point of view, this text is without humanity in relation to the situation experienced by the persons concerned, and without a social vision.

Yes, there are today in the world phenomena of war, violence, natural disasters related to climate disorder, which lead some inhabitants of this Earth, other than us, to seek a better life, or a life simply, elsewhere. Yes, all rich countries, like ours, must take their share of it. We believe that this is far from the case. These countries must assume reception conditions not only dignified, but also intelligent, in the sense of “bearers of a true vision of society and future”.

Intelligence, as part of a policy of reception, is also to allow children, here present for some time or for the rest of their lives, to prepare their future and ours, because they will be part of it.

In this context, it is about giving them the minimum necessary, or even a little more if possible, and allowing them to learn our language, a profession. Allow their parents to play their role as parents, all of them, with financial resources, even if we are not talking about extraordinary amounts.

I would like to reassure those who are worried. In the first reading, we tried to understand the budgetary impact of this measure. This was impossible. In the second reading, you were stripped of the figure of 4 million euros, but this figure was not supported by any mathematical demonstration, and again: I told you yesterday how much I doubted your mathematical demonstrations.

It is therefore essential to ensure a dignified reception that also prepares the future.

It seems, as things are not clear, that some asylum seekers in Belgium, while waiting for the processing of their file – they are not responsible for the slowness of this processing –, sometimes benefit from a tax credit, tax credit granted to families with children whose income is below the taxable threshold.

As I said, you were not able to explain clearly in the first reading how many people were affected, nor to let us know what the amount was. In the second reading, you talked about 4 million euros. This shows that this project does not make much sense, except that of stigmatisation. That’s why I talked about a bazooka to solve a problem that isn’t one.

This bill is nauseable. He does not honor our parliament. I would not be proud, in the place of Mrs. Lanjri, a member of CD&V, who submitted a bill on the subject. I would not be proud if I were a member of the majority forced to vote on this text. As a member of Parliament, I am not proud that such a text is voted in these places. Indeed, if this text is critical on the substance, from an ethical point of view, it is also critical on the legal level. Mr Laaouej has developed this point. By the way, the State Council – but I know you are very little attentive to those who advise you – and the legal services of the House, which are also good advice, point out the unconstitutionality of this text and the risk of a reversal of the federal majority if this text should be voted.

You can make the choice to avoid this reverse by withdrawing your bill. But, if you go to the end of things, for a very small budget profit, you will create an important moral problem, which is why we will not vote for this nauseous text.

I will keep my speech in my place.

My analysis coincides with that of Mr. Gilkinet, especially with his ethical analysis: which human and worldview is the starting point to extract a very small amount of very disadvantaged people?

What worries me most is that the system is not ⁇ consistent. Asylum seekers are entitled to bed, bath, bread and nothing more. They also have no right to work. Or they say they have the right to work and therefore have access to the labour market.

I would still partly understand this if the asylum seekers could not obtain income in any other way. Then your arrangement would be fairly consistent. But, my statement is that here measures are taken for the show. It is just windowdressing. If asylum seekers work only one hour, they are entitled to that refund of taxes.

The measure is therefore primarily a blow in the water, a lot of blade but little wool.

Mr. Speaker, I remember the words of Minister Reynders during the election of Donald Trump. He denounced the path of populism, the path of racism that had been chosen by the United States and could be followed by other countries tempted by populism.

I think this bill is fully in line with this. It aims to exclude asylum seekers from the benefit of the tax credit. I have three criticisms to formulate.

Mr. Speaker, I asked for the word after the previous speaker, Mrs. de Coninck, because I wanted to serve her on her tips.

We will, of course, support this bill, because it is the logic itself. Mrs. De Coninck, however, had a point when she just said that it is a blow in the water if one immediately becomes taxable again after one hour of work.

Therefore, we have also submitted an amendment, precisely to prevent that. For us, once one is recognized, one must have contributed at least three months to be recognized as a taxable person again and to be able to obtain the tax credit. It is the logic itself that one must first have been able to contribute to the system, before one can benefit from it.

Mrs. De Coninck, I immediately accept your criticism. With the amendment we have submitted, it is impossible to enjoy that tax credit after one hour of work.

It is quite instructive to see that Vlaams Belang supports this project. This comforts me in the idea that it really is about doing a bit of what Minister Reynders denounced in the election of Trump, going on the path of populism and racism. The majority here fits perfectly in this line.

I have three criticisms about this project.

First, it is a discriminatory project that surfaces on a racist connotation message, which is to exclude a category of the population from the benefit of a legal tax rule, which is normally granted to any resident of the country regardless of their situation. In addition, I have had the opportunity to say in committee that, in my opinion, the impact analysis that is attached to the bill is not properly completed. Indeed, to the question “what is the impact of the draft regulation on the theme of combating poverty?” it was not necessary to write “no impact” but “negative impact” because it is clear that this will impoverish a category of people. Then, on the second criterion of equal opportunities, it was not necessary to complete "no impact" but check the "negative impact" box because this clearly has a manifest negative impact on equal opportunities in a discriminatory project with racist connotation.

Second, the State Council finds that this discrimination is unfounded and that the principle of equality is violated.

Third, this project creates a fiction in tax law since someone who is resident in the facts is considered non-resident. You reside in Belgium but, artificially, you are considered as non-resident.

The majority and the government make the comparison with a diplomat. It is true that a diplomat, artificially, is not considered a non-resident while he resides part of the year. This comparison is not at all valid because this is a very special case. The diplomat is a resident of another country where he has a very specific tax status. Therefore, the comparison does not hold. In this case, asylum seekers are actual residents only of one country, they are not residents of another country. By removing them of this resident title, one creates, in some way, a form of statelessness of the residence.

These are people who have no residence anywhere in the world. They are without residence. Without fixed residence, without tax residence, in any case. This project is therefore worthy of populism which this majority denounces, however, in length of speech.

Mr. Speaker, Mr. Minister, this bill is so heavy with resentment, back-thinking, subconsciousness, that we have almost no desire to get more heavy. Nevertheless, I cannot let this text pass without expressing the discomfort it causes in the ranks of the CDH at different levels.

From a legal point of view, this bill introduces in fact a total absurdity since asylum seekers who reside in Belgium are considered non-residents, which is a nonsense and ⁇ revealing the non-existence that one would like to attribute to them. It is true: if they weren’t there, it would probably be even better, from your point of view.

From a political point of view, we can see the support that Vlaams Belang provides to this bill, while declaring that it is not yet enough. The battle you are trying to lead is a lost battle in advance. You will always find wolves who will scream louder behind you. You may get some electoral gains from it, but I think rather that you are fueling negative feelings that will eventually overwhelm you both.

Finally, on the budget level, the Minister of Finance finally released a figure in the commission by saying that the impact of the tax expenditure was estimated at 4 million euros. We had a budget debate yesterday on the quality of ex ante and ex post forecasts. I would like at least that Mr. Minister of Finance may attach to the discussion the calculation note on which he was based so that one can have a trace of this estimate and, ⁇ later, see what the bill will report, if not in the polls, at least in the state finances. There is, I think, a duty of budgetary transparency that is imperative, otherwise the positioning of the wider majority in Vlaams Belang would resemble only an ideological posture.

I do not want to override the debate we have held in the committee. That would not be correct and I do not want to stretch the time too much.

Here, however, heavy words are used again. Discrimination and a racist proposal. That is very strange. The accusations are also expressed at my address. Sometimes people blame me for being too left-handed or too social. Now I am suddenly thrown into the other camp. I am too racist now.

I want to say very clearly that this is not about the exclusion of persons on the basis of their origin. This is about something that is no more than logical, regardless of whether it is about Belgians, Americans or anyone else. Once you get bed, bath, and bread, and thus from the government all the support that is necessary, it is logical that you do not get money back from the taxes, unless you are also working or an asylum seeker who is not in the reception, but is, for example, welcomed by family. Therefore, the criticism given here is quite free.

I also want to say very clearly that nobody is fishing here. The refugees have never asked for a tax credit. We just close a gap in the legislation that has been there for too long.

The Government has taken into account the comments made by the State Council. Again, the text is not intended to exclude a target group. If a Belgian gets bed, bath and bread, he would be in the same situation. Those who work and are in the reception will have to pay a contribution. This is already stipulated in the Acceptance Act. In this sense, there can also be some correction.

Madame Lanjri, you tell us that “you have to work and contribute to be entitled to credit.” That is what you said!

The [...]

But you just said it! You say, "We don't give them the child tax credit because they don't contribute, that they receive food aid, that they are housed. And since they don’t contribute, they don’t work, they don’t benefit from the tax credit.” Is this what you say?

Mr. Laaouej, there are 116 000 survivors in our country. Even if they do not work, they still get the tax credit. I think that’s logical, I think that’s fair. Also the approved refugee who receives a living wage or the asylum seeker who receives a living wage and is not in the bed-bad-bread-receipt will receive the tax credit. I have no problem with that, of course, no one. That is the difference.

It is not about contributions. In addition, I repeat that the scheme does not apply to all asylum seekers. It does not apply to the asylum seeker who is not in the reception, but to the asylum seeker who is in the reception. Some asylum seekers have lived here for a while.

Let’s stay on my question, if you want to. What difference do you make, from a fiscal point of view, between an asylum seeker and a person who receives the income of social integration, which marks the CPAS? Explain the difference!

and none. It is logical: there is no difference. If someone gets a living salary, he will also get a tax credit, of course. I told you that too. You must not put words in my mouth that I have not used.

That I understood. But what difference do you make between the two cases of figure? What is the element that allows you to treat a CPAS recipient and an asylum seeker differently on the tax level?

The difference is that it is about someone who receives bed, bath and bread and thus full material support. A Belgian or a foreigner who has lived here for 10 years and gets bed, bath and bread would fall under the same regime.

You have no answer, Madame.

You must want to understand, but it is easier for you to say that I am racist.

I cannot allow this to pass. Is there anyone in this assembly who can testify that I have treated you as a racist?

You defame me!

Be careful what you say, there are accusations that are serious!

Can anyone testify here that I have called you a racist? Stop it, stop it!

Do not create an incident where there is no incident.

On the other hand, Ms. Lanjri does not justify the difference in treatment that she makes between an asylum applicant and a person who is eligible for the CPAS or who is holding an income of social integration.

This means, Madame, that you have a position and that you twist the legal realities in order to be able to integrate it into a tax system that requires consistency from the point of view of the law, consistency that you do not possess.

This is why the State Council says that this position will be challenging before the Constitutional Court and that there will be grounds for cancellation.

Mr. Speaker, I have called this text nauseous and I have said to you, Mrs. Lanjri, that you have already taken more subtle and humanistic parliamentary initiatives than this text you submitted and which inspired the government.

We agree that the tax credit for dependent children has been set up in our legislation to help people whose income is lower than taxable income, to help them and to enable them to properly take care of their children. Today there are children, born in Belgium or not, whose parents are or are not asylum seekers, who deserve to receive a boost. They represent our coming.

As it has been said, you are dealing with a problem that is not one.

At first reading, the government could not specify the number of people involved and the cost of this operation.

In the second reading, we were able to remove the minister that the amount was four million. We asked him how he got that amount. He told us that it was his services who had made the calculation.

I think you are trying to solve a problem that does not exist and you are creating a fundamental inequality between human beings, depending on their status. This text lacks humanity and has no vision of the future of our society.

I find it damaging that you, Mrs. Lanjri and the CD&V, lend yourself to this game because sometimes, within the majority, one can find in your party a little more social sense and more openness than in the head of the other members of the government.

I take you here, in a flagrant crime of defending a text that is the opposite of what I expect from a parliament.

The government has the word.

Mr. Speaker, it is obvious that a deep discussion has begun on principles, beliefs and value judgments and that there is a difference between the majority and the opposition, which I had already observed earlier in the Finance Committee.

From a technical point of view, I will devote a point regarding the discriminatory aspect of this project. I rely on the State Council according to which “asylum seekers are excluded from the natural persons tax because they do not meet the main criterion, namely to be considered as residents of the Kingdom. On the proposal of the Council of State, an exception was provided for asylum seekers considered as residents of the Kingdom before applying for asylum in Belgium because the seat of their fortune was already established there. Instead of changing the content of the notion of residence, the government decided that asylum seekers would no longer be subject to the tax of natural persons but of non-residents. Asylum seekers will be treated like all non-residents. I thank you.

Mr. Minister, first of all, do you realize that you are subject to the tax of non-residents, persons who reside in Belgium, or people who reside in Belgium 365 days / 365 days? Imagine the absurd system you are proposing.

Then I acknowledge your sincerity. You said, “I have value judgments, I have an ideological view different from yours.” You play cards on the table and that’s great. On the other hand, some from CD&V believe that this is not a matter of value judgment but rather a matter of principle.

It would be good if within the majority, you would agree whether this is a matter of principle or of value judgment and ideological stance. There is a problem of consistency within the majority! For the rest, I’m absolutely not convinced by the answers you bring to our arguments and, in fact, you don’t bring them, which is very regrettable.

I appeal to all those who, in the majority, may possibly have a fiber – because of their liberal or humanistic political philosophy – and who consider that one man is equal to another man, who consider that when one establishes a discrimination between individuals by depriving rights of some, this is never done lightly.

Ideally even, one should never do it because there is a fundamental principle that is the principle of equality and that principle of equality is guaranteed by the Constitution - it is nothing, the Constitution! - and beyond the Constitution, through the European Convention on Human Rights, because we are a democracy where there is no hierarchy between human beings. There are no taxpayers of first zone, second zone and third zone. There are taxpayers. This is what you do not want to see. So, I call for a rush in the liberal ranks, in the humanist ranks of CD&V to not vote for this text and to join us in its denunciation. It is never too late!

Mr. Minister, you cite the State Council in a phrase that, without a doubt, arranges you and in which you think you can find legal support. It is, however, excessively clear in the opinion that it refers to your text and that I will quote, since you have cited part of the State Council opinion: "The State Council has no knowledge of any other justification than the political justification referring to the government agreement, so that it cannot properly assess the compatibility of the regime in project with the principle of equality."

This clearly means that the State Council questiones the respect by this text of the principle of equality and does not find in the justifications given in the original text and in the dialogue with the representative of the government the elements that may allow it to assert that the principle of equality is respected. He advises you to clarify things better and he says, because he knows exactly what will happen – he is accustomed to this type of text – that ultimately it will be up to the Constitutional Court to assess whether the measure is reasonably justified.

You will vote for a text that I consider nauseous – I do not return to the debate we have formulated – but which, in addition, will be attacked before the Constitutional Court and in relation to which you will lose. This is a way of legislation that, really, is problematic. I reject the idea that you may find in the opinion of the State Council elements that give a legal basis to this text. You create a difference of treatment between citizens of the world, citizens of the Earth who live here in Belgium and who will not be subject to the same tax rules. Neither you nor Mrs. Lanjri are able to justify this at the government level!