Foreign tax credits (FTCs)
Unilateral relief from double taxation of foreign-source income may be provided in the form of an exemption, credit, or tax reduction, depending on the type of income. Where taxable, foreign income is subject to tax only on its net amount (i.e. after deduction of expenses and foreign taxes).
Dividend income FTC
Generally, no FTC is available for foreign dividends.
Royalty income FTC
Unless a more advantageous provision (e.g. a tax sparing provision) would apply based on a DTT concluded by Belgium (see the treaty list in the Withholding taxes section), an FTC is granted under Belgian tax law with respect to foreign royalty income, provided that this income has effectively been subject to taxation in its source country. This FTC is equal to 15/85 of the net frontier amount (i.e. after deduction of foreign WHT) of the royalty. The FTC is, in principle, included in the taxable basis of the recipient company and is only creditable against Belgian income tax to the extent that said foreign income is included in the taxable basis of the Belgian company. Excess FTC, if any, is not refundable and cannot be carried forward.
Interest income FTC
Unless a more advantageous provision (e.g. a tax sparing provision) would apply based on a DTT concluded by Belgium (see the treaty list in the Withholding taxes section), the Belgian beneficiary of foreign interest income is entitled to an FTC under Belgian tax law, provided that this income effectively has been subject to taxation in its source country. The computation of the FTC is based on the net frontier interest income (i.e. after deduction of foreign WHT) and adjusted with a ratio taking into account the financial leverage. The FTC is, in principle, included in the taxable base of the Belgian lender to the extent the FTC can be effectively used. It is creditable against the CIT due but is not refundable in case of excess, neither can it be carried forward.
Notional interest deduction (NID)
Belgian corporate income taxpayers can claim NID for tax purposes, reflecting the economic cost of the use of capital, equal to the cost of long-term, risk‑free financing.
The NID rate for tax year 2017 (i.e. accounting years ending between 31 December 2016 and 30 December 2017, both dates inclusive) is 1.131% (1.631% for SMEs).
The NID rate for tax year 2018 (i.e. accounting years ending between 31 December 2017 and 30 December 2018, both dates inclusive) is 0.237% (0.737% for SMEs).
As of tax year 2013, new excess NID can no longer be carried forward, whereas, under the old rules, ‘excess NID’ (i.e. NID that cannot be claimed owing to the taxpayer having insufficient taxable income) could be carried forward for a maximum of seven years.
However, the ‘stock’ of excess NID (stemming from previous years, i.e. tax years 2012 and before) can still be carried forward for seven years (as was previously the case), though the excess NID that can be applied in a given year is limited to 60% of the taxable profit (i.e. the profit remaining after setting off carried-forward tax losses and other tax deductions). The 60% limit is only applicable to the part of taxable profit exceeding EUR 1 million. The portion of excess NID that cannot be used due to the '60% rule' (i.e. 40% of taxable profit minus EUR 1 million) can be carried forward indefinitely.
As for determining the basis on which this deduction is calculated, the company's share capital plus its retained earnings, as determined for Belgian GAAP purposes and as per the last year-end date, will have to be taken into account with some adjustment. The accounting equity as per the last year-end date has to be reduced by, amongst others, (i) the fiscal net value of financial fixed assets qualifying as participations and other shares, (ii) the fiscal net value of participations and shares that qualify for the dividends received deduction regime, and (iii) if a company has a foreign PE located in a jurisdiction with which Belgium has concluded a tax treaty, the NID is reduced by:
- the lower amount of (i) the result of the foreign PE or real estate or (ii) the net asset value of the PE or real estate multiplied by the NID rate if it concerns a PE located in the European Economic Area or
- the net asset value of the PE or real estate multiplied by the NID rate if it concerns a PE or real estate located in a treaty country outside of the European Economic Area.
In addition, various other adjustments should be made in order to avoid abuse.
The investment deduction is a deduction from the tax base in addition to the normal tax depreciation on, amongst others, qualifying patents, environmentally friendly R&D investments, and energy-saving investments.
A company can benefit from a one-shot investment deduction of 13.5% (for tax year 2017, i.e. accounting years ending between 31 December 2016 and 30 December 2017 [both dates inclusive], and for tax year 2018, i.e. accounting years ending between 31 December 2017 and 30 December 2018 [both dates inclusive]) of the acquisition value of qualifying investments. With respect to environmentally friendly R&D investments, a company can also opt for a spread investment deduction of 20.5% (for tax year 2017 as well as tax year 2018) of the depreciation on qualifying environmentally friendly R&D investments.
If there are insufficient or no taxable profits, the investment deduction can be carried forward without any limitation in time or in amount. Certain restrictions apply as to the maximum amount of investment deduction carried forward that is tax deductible in a given year.
Under certain conditions, the investment deduction carried forward can be lost after a change of ownership (see Net operating losses in the Deductions section).
Note that the investment deduction for patents and R&D cannot be combined with the tax credit for patents and R&D.
As of 2016, note that, in principle, only development costs can be activated and no longer costs of research.
Patents and R&D tax credit
As an alternative for the above investment deduction for patents and R&D, a company may opt for a tax credit for which the advantage corresponds to the advantage of the investment deduction (i.e. 13.5% one-time and 20.5% for a spread investment deduction for tax year 2017 as well as tax year 2018), multiplied by the normal CIT rate of 33.99%. The investment deduction implies a deduction of the taxable basis, while the tax credit is a reduction of the tax due. A key advantage of the tax credit for patents and R&D is that it is refundable if it has not been deducted for five subsequent tax years.
Note that the amount of the tax credit should be deducted from the basis of the NID.
Reduced payroll tax for qualifying researchers
80% of the payroll tax withheld from wages of qualifying researchers by a Belgian company or establishment does not need to be remitted to the Belgian Tax Revenue if the researchers are employed in R&D programmes and have a qualifying degree (e.g. a degree in [applied] sciences, veterinary medicines, bio‑technology). For the employee’s personal tax liability, the Belgian Tax Revenue considers that the payroll WHT amount was entirely withheld.
Belgian law mentions a definition of ‘scientific research’ and foresees a reporting obligation with the Public Federal Administration for Scientific Policy (Belspo), which can approve or reject the request for application if asked for.
Innovation income deduction (IID)
As of 1 July 2016, the Belgian PID regime has been abolished. Indeed, in line with the so-called ‘modified’ nexus approach, the patent box regime had to be replaced with a BEPS (in particular Action Point 5 of the OECD BEPS Action Plan)/EU compliant patent box regime. Subject to conditions, the (old) PID regime is grandfathered for five years.
In contrast to the (old) PID regime, the qualifying patent/innovation income is calculated on a net basis. The percentage of this deduction is raised from 80% under the (old) PID regime to 85% under the new IID regime resulting in an effective tax rate of 5.1% over the life time of the intellectual property (IP). The new regime entered into force on 1 July 2016.
Qualifying intellectual property (IP)
The IID can apply to income derived from the following IP of which the company or branch has the full ownership, co-ownership, usufruct, or licence of or right to use:
- Patents and supplementary protection certificates.
- Breeders’ rights requested or acquired as of 1 July 2016.
- Orphan drugs, i.e. a drug to treat rare diseases, (limited to first ten years) requested or acquired as of 1 July 2016.
- Data and market exclusivity granted by the competent authorities after 30 June 2016 (e.g. market exclusivity for orphan drugs or data exclusivity for reports with respect to pesticides, clinical studies of generic or animal drugs).
- IP of copyrighted software resulting from a research or development project as defined for the purposes of the partial exemption of wage WHT for R&D and that has not yet generated income before 1 July 2016.
Under the (old) PID regime, the benefit was only provided as from the year the patent was actually granted. Going forward, the benefit would also become available as of the date the patent is requested (and provided that the patent is actually granted afterwards).
Without making any restrictions to SMEs, the following income will be considered as derived from the above qualifying IP in so far as the remuneration is included in the Belgian taxable result of the Belgian company or branch concerned:
- Licence fees.
- IP income embedded in the sales price of own manufactured products for which a third party would be willing to pay a license (so-called ‘embedded’ royalties).
- IP income derived from process innovation.
- Indemnities on the basis of a court/arbitral decision, an amicable settlement, or an insurance settlement.
Furthermore, the proceeds from a transfer of qualifying IP are also in the scope of the deduction, subject to a reinvestment condition to be met within five years.
For the first taxable period during which the IID will be applied, the (net) innovation income should be decreased by the overall expenditure incurred during (preceding) taxable periods ending after 30 June 2016. Alternatively, one can opt to spread this recapture on a straight-line basis during a period of a maximum of seven years. In the case that the qualifying IP right terminates or is alienated before the end of this seven-year period, a correction will apply in order to limit the IID actually applied to the amount that would have been applied if no spread recapture had been opted for.
Calculation of the IID
The IID is determined by multiplying the net innovation income by a fraction. This fraction represents the ratio between one’s own R&D activities and the outsourced R&D activities (towards related parties). As such, the taxable result of a Belgian company or branch will be reduced by 85% of the total net innovation income after this fraction has been applied.
IID = ((qualifying expenditures + uplift) / overall expenditure)) x net innovation income x 85%
It is important to note that the ratio should be calculated on a net basis, implying that (contrary to the [old] PID regime) current year deducted overall expenditure should be deducted from the current year qualifying innovation income.
It is thereby also provided that excess deduction that cannot be used due to insufficient taxable basis can be carried forward to be compensated with future taxable profits (contrary to the [old] PID regime).
The qualifying expenditure may be uplifted by 30%, with a maximum of the overall expenditure. This means that the uplift may increase the qualifying expenditure but only to the extent that the taxpayer has non-qualifying expenditure. The purpose of this uplift is to ensure that the nexus approach does not penalise taxpayers excessively for acquiring IP or outsourcing R&D activities to related parties.