BELGIUM Law and Practice Contributed by: Aldo Engels, Emile Bauwens, Emma Parduyns and Vincenzo Vilardi, Loyens & Loeff
requested. There is no separate Belgian domes - tic legal framework for requesting a bilateral or multilateral APA. The BTA has published an FAQ document with respect to practical aspects of requesting a bilateral or multilateral APA. The number of bilateral or multilateral APA applica - tions remains small compared to unilateral APAs. It is not possible to provide an exact timetable for the bilateral APA process as this will depend on several factors including the complexity of the case, the timely availability of information, etc. An additional factor is that a bilateral APA is a negotiation between states and timing will thus also depend on the agenda of the competent authorities and the jurisdictions concerned. Based on the most recent statistical data, the average time to negotiate a bilateral or multilat - eral APA in Belgium is approximately 21 months with EU countries and 17 months with non-EU countries. While unilateral APAs are more com - monly used, practice shows that the BTA also promotes bilateral or multilateral agreements and takes a co-operative stance with a view to achieving such agreements. 7.2 Administration of Programmes Unilateral APA requests are handled by the Ser - vice for Advance Decisions (also known as the “Ruling Commission” ), a well-functioning gov - ernment body within the Federal Public Service (FPS) Finance acting autonomously from the BTA. Generally, the Ruling Commission has a co-operative attitude towards the taxpayer. The Ruling Commission is managed by a board of six leading college members, including a chair - person. Decisions are taken by a majority vote. In the case of a tie, the chairperson has a cast - ing vote. Although decisions are taken autono - mously by the Ruling Commission, other tax authorities may be consulted for advice during the ruling proceedings.
In order to examine the request as soon as pos - sible, the Ruling Commission generally stipu - lates adding the following documentation to the APA request: • identity of the parties and description of the group and its activities; • duration of the APA; • description of the intercompany transactions; • details regarding the transfer pricing method; • comparability study (if available), including a functional analysis; • unilateral rulings concluded by the group (if any); • the proxy of the person who filed the request; • financial data of the concerned company; and • references to the applicable legal provisions at hand. Until a ruling is granted, any new information relating to the situation or transaction concerned must be added to the application. Two phases of the unilateral APA application process can generally be distinguished: the pre- filing phase and the formal ruling application. • In the first (and optional) phase, the formal ruling application is prepared by submitting a pre-filing application to the Ruling Commis - sion (possible even on an anonymous basis). In this pre-filing application, the intended transaction as well as the background of the transaction are already accurately described and documented in detail. Moreover, during the pre-filing phase, consultations with the designated team within the Ruling Commis - sion already take place. The purpose of this phase is to come to a formal ruling request to be presented to the college. • In the second phase, the formal ruling appli - cation is submitted to the college within the
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