“Structured notes”: tax qualification under fire?

By 14/03/2013December 1st, 2017Uncategorized

There is no consensus about the precise qualification of structured notes as for example Gold Bullion Securities. The question is if these have to be qualified as debt claims, notes similar to bonds as well as sui generis notes.

The Belgian tax Administration has taken a clear position stating that these notes have to be qualified as notes with fixed interest as described in article 2, § 1, 8°, first alinea of the Internal Tax Code 1992 (see recent circular n° Ci.RH.231/532.259 (AAFisc N° 3/2013 of January 25th 2013)).

The question is if this position is correct. In the doctrine it is clearly stated that this position can be criticized.

This is especially the case for products giving no interest, from which the result is uncertain and which give no guarantee on any gain whatsoever.

If these products are taxed, it will be necessary to file a complaint against this taxation. In practice this will imply that the withholding tax will be paid and that the final taxpayer will have to file a tax complaint in order to recover the withholding tax.