BELGIUM Law and Practice Contributed by: Alain Van Geel and Emilie Van Goidsenhoven, Tiberghien
but cannot exploit it until the usufruct period ends. Once the usufruct expires (eg, when the usufructuary dies or the term ends), the bare property owner gains full control of the property. Société Simple The société simple is often used when structuring an estate plan. It allows assets to be transferred (by a gift of the shares), while control of the assets is maintained by others (usually the parents). The company’s shares may be donated in order to pass on the assets con- tributed to it. A société simple can be set up in several different situations, given the considerable freedom it offers to create a tailor-made arrangement. This does not require a notarial deed and can be done privately. Also, the société simple is tax transparent. Private Foundations The Belgian private foundation was introduced in 2002 and is now governed by the rules in the Bel- gian Code on Companies and Associations. Belgian private foundations are subject to legal entities tax (if they engage in commercial/economic activities in more than an accessory manner, a private founda- tion could be subject to corporate income tax). Being subject to legal entities tax implies that only certain income categories will be subject to income tax (such as dividend and interest income – default rate of 30%). A private foundation pays a yearly tax on the total of its assets on January 1st, unless this total amounts to less than EUR25,000. Debts (besides certain excep- tions, such as operational costs) are not deductible. This is a progressive tax, the rate of which amounts to 0.15% between EUR50,000 and EUR250,000, to 0.30% between EUR250,000 and EUR500,000 and to 0.45% for amounts in excess of EUR500,000. However, against this revised tax, various appeals for annulment have been filed with the Belgian Constitu- tional Court. 6.2 Tax and Regulatory Constraints In Belgium, the availability and attractiveness of these mechanisms are significantly shaped by tax rules and broader anti-avoidance principles. With respect to the société simple, anti-avoidance considerations are par- ticularly relevant where the structure is used primar- ily to disguise the donor’s retained control over the
transferred assets. In practice, the robustness of the governance framework and the consistency between the legal documentation and the parties’ actual con- duct are therefore critical to mitigate risks. Regarding private foundations, the applicable tax framework and the related reporting and compliance obligations materially influence their use, in terms of both administrative and tax burdens. More generally, across all such mechanisms, the Belgian general anti- abuse rule in tax matters plays a decisive role. The tax authorities may recharacterise transactions (whether viewed individually or as part of a broader arrange- ment) where their essential purpose is to obtain a tax advantage that is contrary to the object or purpose of the relevant legislation. In Belgium, the control and disposition of digital assets upon death are governed by a fragmented legal framework combining general civil law principles, con- tract law and data protection rules. There is no single, comprehensive statute specifically addressing digital succession. Under Belgian law, digital assets that have an eco- nomic value – such as cryptocurrency accounts – are considered as financial assets, similar to cash. They are therefore part of the deceased’s estate and sub- ject to inheritance tax in the same way as other mov- able assets. The main legal difficulty is not ownership, but effective control: heirs must be able to identify the asset and access it. 7. Succession of Digital Assets 7.1 Legal Framework By contrast, purely personal digital assets (such as email accounts or personal social media profiles) do not fit neatly within traditional property concepts. Their fate is often governed less by succession law than by contractual terms imposed by service provid- ers. The General Data Protection Regulation (GDPR) does not apply after a person’s death, and Belgium currently provides for no specific statutory provisions in this regard.
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