New regulation for foreign employees, directors and researchers as from 1 January 2022

The draft of the new Program Act of December 1, 2021 provides for a new, this time statutory, regulation for foreign employees and directors that will replace the current special tax system for foreign executives, which is still based on an administrative Circular of 1983.

The purpose is to make Belgium permanently attractive for highly qualified foreign personnel and to put a stop to 'abuses' of the existing system. The new system is based on similar systems in our neighbouring countries.

Below you will find the highlights of the new system.

For whom?

The new system still applies to employees or company directors who come to work in Belgium from abroad and to employees (not company directors!) who carry out specific scientific research activities for at least 80% of their time.

Conditions for the employer

The employees and directors must either be directly recruited abroad by a Belgian employer or be seconded to Belgium by a foreign company that is part of a multinational group.

Conditions for the employee/ director/ researcher 

In the period of 60 months prior to the start of the employment in Belgium, the person concerned may not:

• have been a Belgian resident
• have lived within 150 km from the Belgian border
• have been subject to non-resident income taxation in Belgium on his professional income.

Nationality, on the other hand, no longer plays a role.

In addition, a minimum gross remuneration condition of EUR 75.000 applies. This is the gross remuneration before deduction of social contributions but including holiday pay, thirteenth month, benefits in kinds, premiums, bonuses, other gratuities. This condition does not apply to researchers.

Application procedure

The employer must submit an application within 3 months of commencement of the employment.

Costs proper to the employer: the 30% rule

Recurring costs related to the secondment or employment in Belgium that are paid on top of the normal remuneration, will be regarded as exempt costs proper to the employer, for 30% of the gross remuneration with a maximum of EUR 90.000. This applies, for example, to the additional costs of living, housing, etc. in Belgium compared to the country of origin.

Compensation for certain other costs are not subject to a limitation, provided they are substantiated by underlying supporting documents. This is amongst others the case for the moving costs to Belgium, the school fees for children, ...

Application period

The new system will apply for a maximum period of 5 years (possibly to be extended by 3 years).

In order to continue benefitting from the system, the conditions relating to the international nature of the employer and the minimum remuneration will have to be met for non-researchers.

Taxation in the personal income tax

Contrary to the current system in which foreign executives by fiction are considered as non-residents, they will from now on be taxed as resident tax payers.

If, however, on the basis of the factual circumstances, they must continue to be regarded as non-residents, a certificate will have to be provided showing that they are effectively taxed as tax resident of another state.

Entry into force and transition

The new system would come into effect as from 1 January 2022.

The following transitional arrangement is foreseen for foreign executives who benefit from the current regulation:

• either they switch to the new system; however, this is only possible if the period of 5 or 8 years has not yet expired and insofar as all the requirements for the new system have been met retroactively. However, if the Administration does not approve the switch, the old system can no longer be applied;
• or they remain subject to the old system; this is still possible for 2 years, so until the end of 2023; after that, switching is not possible any more.

Conclusion

The new Program Act now definitively puts an end to the existing tax regime for foreign executives.

The new system also puts an end to the calculation of the tax-free costs proper to the employer in accordance with the ‘technical note’ of the administration and the travel exclusion.

Whether in practice the new regulation will be more favourable for the employees and employers involved will have to be assessed on a case-by-case basis.