BELGIUM Trends and Developments Contributed by: Christophe Romero and Senne Verholle, Aeacus Lawyers
at progressive rates. As a result, the reform does not replace the existing system, but builds upon it. Gains that were previously exempt now fall within the scope of the 10% regime, while speculative gains remain subject to the higher rate. This outcome has been identified as one of the main points of criticism. The distinction between normal management and speculative activity is maintained, despite being widely regarded as inherently uncertain. The concept of normal management is not defined in legislation, but assessed on the basis of criteria developed through administrative practice and case law, including: • transaction frequency; • use of leverage; • level of organisation; and • taxpayer expertise. In the context of crypto-assets, these criteria are par- ticularly difficult to apply. As a result, while tax rates are now clearer, the qualification of the underlying activity remains subject to a case-by-case assess- ment. For many investors, it remains difficult to determine in advance how their activities will be treated. Gains that were previously exempt are now, in principle, subject to taxation, while qualification uncertainty persists. A further consequence of the new regime is the increased reporting obligation. Capital gains must be declared, significantly enhancing the visibility of crypto-related income for the tax authorities. This increased transparency is likely to affect tax audits. As more structured data becomes available, particu- larly in combination with international reporting frame- works, crypto-assets are expected to become more prominent in audit processes. For taxpayers, this reinforces the importance of con- sistency between reported gains and underlying trans- action data. In an environment of increased transpar- ency, insufficiently documented positions may give rise to scrutiny.
Uncertainty around passive crypto income in the blockchain ecosystem In addition to capital gains, the tax treatment of income derived from crypto-assets within the broader blockchain ecosystem remains an area of significant uncertainty. This is particularly relevant for activities such as staking, mining and participation in decentral- ised finance (DeFi) protocols, which generate periodic returns rather than gains realised upon disposal. The Belgian tax administration has generally taken the position that such income should be treated as movable income, subject to a tax rate of 30%. This approach is based on an analogy with traditional income from movable assets, such as interest or divi- dends, but is not supported by a detailed legislative framework specifically addressing crypto-assets. As a result, the qualification of these forms of income remains open to interpretation. This has led to increas- ing debate, with commentators arguing that a system- atic classification as movable income may be overly simplistic and insufficiently aligned with the econom- ic reality of the blockchain ecosystem. In particular, income derived from staking, mining or DeFi partici- pation does not always fit easily within the traditional framework of movable income. Under the traditional concept, such income typically arises where a taxpay- er receives a return from an identifiable counterparty in exchange for making capital available, such as a bank paying interest or a company distributing dividends. In a blockchain context, and particularly in on-chain environments, this structure is often absent. Returns may be generated through protocol-based mecha- nisms or automated smart contracts, without a clearly identifiable counterparty providing remuneration for the use of the underlying assets. More fundamentally, such returns do not necessar- ily constitute compensation paid by a third party for the use of movable assets. Instead, they may arise from participation in a network or protocol, where the return is generated by the system itself rather than by a counterparty using the taxpayer’s capital. That being said, this analysis may differ in more cen- tralised environments. Where staking or yield-gen-
79 CHAMBERS.COM
Powered by FlippingBook