- The FAQ ((see links for FR and NL versions) clarifies some of the most relevant terms used in the legislation and confirms the scope of services targeted by the legislation.
- Further detail is provided on the information and reporting obligation and the reporting forms are now publicly available. The platform operator will need to electronically provide each relevant user with a reporting form and will have to send an overview of these reporting forms to the Belgian tax authorities.
- The FAQ clarifies the interaction with the pre-existing regime applicable in the collaborative economy.
- The applicable penalties are determined and an administrative tolerance for non-compliance with the information obligation is applied until 1 March 2022.
In anticipation of the implementation of DAC 7 (i.e., the EU Council Directive 2021/514 of 22 March 2021) by 31 December 2022, Belgium decided to preempt such implementation by introducing a DAC 7 "light" reporting obligation for digital platform operators in the sharing and gig economy by a specific legal provision (Article 321quater of the Belgian Income Tax Code ('BITC')) that was introduced by the Law of December 20, 2020. The goal of this provision is to render the income realized by service providers through these platforms more transparent and to prevent avoidance or fraud from a tax and social security perspective.
The Law entered into force on 9 January 2021 and will remain in force until the EU DAC 7 is implemented into domestic law, at which point the current provision will cease to exist.
The Belgian tax authorities recently issued a FAQ in order to clarify the DAC 7 "light" information and reporting obligations. At the same time, the relevant reporting forms were published. If anything, it shows that the compliance burden may be very heavy in certain circumstances.
The scope of the DAC 7 "light" obligations
Firstly, the FAQ provides some further guidance on the most relevant terms used in the DAC 7 "light" legal provision.
The FAQ actually uses the wording of the EU DAC 7 to describe a digital collaborative platform, which includes any software, including a website or a part thereof and applications, including mobile applications, accessible by users and allowing sellers to be connected to other users for the purpose of carrying out a relevant activity, directly or indirectly, to such users. It also includes any arrangement for the collection and payment of a consideration in respect of the relevant activity.
The term "platform" does not include software that without any further intervention in carrying out a relevant activity exclusively allows any of the following:
- processing of payments in relation to the relevant activity;
- users to list or advertise a relevant activity;
- redirecting or transferring of users to a platform.
The digital collaborative platform operator is the entity that contracts with sellers (=users) to make available to them all or part of a digital collaborative platform.
The scope of the legislation is confirmed. It covers the supply of any services (with a Belgian nexus) within the meaning of the Belgian VAT Code rendered by an individual, irrespective of his/her professional or private capacity and irrespective of the capacity of the recipient of such services.
The services covered are divided in categories provided by the Royal decree of 18 April 2021.
Foreign platform operators
As mentioned in our prior newsflash, foreign platform operators can also be subject to the DAC 7 "light" obligations in Belgium. In cases where the foreign platform operator has no branch or establishment in Belgium, it is legally required to appoint a legal representative in Belgium. The FAQ confirms this. Such legal representative will be personally liable for fulfilling the obligations of the foreign platform operator. A copy of the agreement between the foreign platform operator and the legal representative needs to be provided to the Federal Public Service Economy via e-mail: firstname.lastname@example.org.
The user information obligation
The FAQ states that the platform operator must provide all information regarding the tax and social security obligations to its relevant users upon the conclusion of an agreement between them and the platform. The operator must amongst others indicate the obligation to file a tax return (resident or non-resident personal income tax), to pay the taxes, any social security obligations and the applicable fines in case of non-compliance. A simple reference to the general website of the FPS Finance is hence not sufficient to inform users in accordance with the legal provision.
In addition, the FAQ provides the links to specific websites of the tax authorities that should be included in the communication towards the users.
The reporting obligation
The FAQ provides further explanation on the specific form that was published (i.e., the form 281.48) and that needs to be used by the digital platform operator (or its legal representative) to comply with the reporting obligation towards its targeted users. This document is a template intended for the collection of all the information related to the relevant user (as described in our previous newsflash) and will hence need to be completed for each targeted user. The FAQ states that the digital platform operator (or the legal representative) will need to send this form electronically to the relevant users by 31 March of the year following the year for which the information is given (i.e., for the first time by 31 March 2022).
A second form was published as well (i.e., the summary statement 325.48) that needs to be used to comply with the reporting obligation towards the Belgian tax authorities. This document should contain all the information communicated to the users and included in the forms 281.48.
The platform operator (or the legal representative) will need to upload the summary statement electronically via the application BELCOTAX ON WEB (either manually or through an XML file).
As expected, the FAQ confirms that, since no specific penalty is provided for non-compliance with the DAC 7 obligations, the general penalty provisions of the BITC apply. Non- or late compliance with these obligations could hence entail an administrative fine ranging from EUR 50 (for the first violation) to EUR 1,250 (to be applied per violation).
With regard to the obligation to provide the users with full information on their tax and social security obligations, which is applicable since January 2021, the authorities will apply an administrative tolerance for the period between the date of entry into force of Article 321quater, BITC (i.e., 9 January 2021), and February 28, 2022.
For further information and to discuss what this development might mean for you, please get in touch with your usual Baker McKenzie contact.