Anonymity - the end of an era
Belgians are known for their dislike of talking about money, not about their income and even less about their assets. This mentality was also anchored for years in our legislation, which offered a very broad anonymity regarding your assets. Over the years, however, this anonymity gradually crumbled away, with the abolition of bank secrecy (2011), the mandatory reporting of foreign structures (2013), and the obligation to declare foreign bank account at the central contactpoint (2015) as important milestones.
One important remaining pillar of anonymity was that nominal shares of (Belgian) companies were only registered in a private register. This allows you to contribute some of your assets in a company without third parties knowing that you are a shareholder of that company. And since dividends paid by the company are only subject to withholding tax, even the tax authorities could not know that you are a shareholder.
However, even the abovementioned anonymity will disappear in the future. Indeed, at European level Directive 2015/849 was adopted. This Directive shall enter into force in 2017 and provides that Member States should establish a central register of the ultimate beneficial owners (natural persons holding at least 25% of the shares of a company, hereafter 'UBO’) of companies on their territory no later than June 26, 2017. In practice this central register means that the tax authorities in the future will always have knowledge of the (European) companies in which you hold at least 25% of the shares.
In light of recent scandals such as the Panama Papers, it cannot be denied that it makes sense for the tax authority to be aware of the companies held by Belgian taxpayers, to ensure proper compliance with the relevant tax obligations. In addition, the registry is also useful in the context of avoiding money laundering, or combating the financing of illegal activities.
However, the registry will not only be made available to government agencies and financial service providers, but also to all individuals or organizations that can demonstrate a legitimate interest. Specifically, one can think of investigative journalists. Because of this, a subsantial chance exists that such information may be published in newspaper articles (cf. http://derijkstebelgen.be/de-lijst/).
For many wealthy families the abolition of anonymity vis-a-vis the public gives rise to a feeling of insecurity, which some fear leads to an increased risk of kidnapping or extortion. In response, the Directive provides for a possibility for Member States to restrict the access of journalists and other third parties in certain cases. However, as it remains uncertain how this will work out in practice, it also makes sense to look for alternatives.
In this context it is important to note that the Directive contains an exception for trusts. Also UBOs of trusts will be included in a register, but the register will not be accessible to persons other than the government and financial services. This allows the trust to be used as a "shield" to protect the anonymity.
A trust works as follows. The "settlor" (you) carries over assets (the shares of the company) to the trustee under the obligation to use these assets in favour of the 'beneficiary' (again yourself). The trustee is the legal owner of the shares, so basically you are no longer the UBO of the company. As a beneficiary you are the UBO of the trust, but this information is not made public. The trust can be structured in such a way that you, although not strictly legal owner anymore, still retain a strong control (e.g. revocable trust, ability to substitute trustee, etc.) on the transferred company.
A trust but also gives rise other considerations, both from a tax (for example, in light of the recent Cayman tax) and civil law perspective (for example, the application of the Belgian forced heirship rules).
Terug naar overzicht