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Belgium Taken To Task Over Walloon IHT And Gift Tax Regime

by Ulrika Lomas, for LawAndTax-News.com, Brussels

18 July 2005

The European Commission announced on Thursday that it has decided to refer Belgium to the European Court of Justice over the Walloon inheritance and gift tax laws, which the Commission feels discriminate against foreign charities.

These laws provide for reduced taxation of legacies and gifts to charity organisations, but can discriminate against foreign charity organisations. The Commission considers that this violates the prohibition of discrimination on grounds of nationality and the freedom of establishment.

Article 60 of the Walloon "Code des droits de succession" and Article 140 of the Walloon "Code des droits d'enregistrement, d'hypothèque et de greffe" provide for a reduction of inheritance and gift taxes but only for two types of organisations:

  • Organisations resident in Belgium;
  • For the application of the inheritance tax law, organisations established in the EU Member State in which the person making the legacy (the "de cujus") effectively resided or had his place of work at the time of his death, or in which he had previously effectively resided or had his place of work; and
  • For the application of the gift tax law, organisations in the EU Member State in which the donor effectively resides or has his place of work at the time of the donation, or in which he has previously effectively resided or had his place of work.

These conditions mean that the reduced tax rate is not applied when Walloon residents who never worked or lived in another Member State make legacies or gifts to charities in other Member States. The reduced rate is also not applied if a person who moved from another Member State to Belgium makes a gift or legacy to a charity in a third Member State.

In the opinion of the Commission these conditions are not in line with Articles 12, 43 and 48 of the EC Treaty and the corresponding articles of the Agreement on the European Economic Area. These articles prohibit discrimination on grounds of nationality, restrictions to freedom of establishment and discrimination between companies of a Member State and natural persons who are nationals of that Member State.

The Flemish and Brussels tax laws contained similar discriminatory provisions, but following the reasoned opinion the Commission sent to Belgium in 2002, they were changed and the reduced rates were extended to legacies and gifts made to EU and EEA charity organisations, without the conditions laid down in the Walloon tax law.

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