BELGIUM Law and Practice Contributed by: Aldo Engels, Emile Bauwens, Emma Parduyns and Vincenzo Vilardi, Loyens & Loeff
Ruling Commission, which decides on grant - ing the ruling. Applications are examined thoroughly, with the underlying facts as well as the assumptions being discussed through a constructive dialogue with the applicant. The applicant is expected to be fully co-operative throughout the process. The Ruling Commission can ask the opinion of the Central Income Tax Administration, but the final decision-making power remains with the Ruling Commission. Although the BTA has published some general guidance, no specific procedure for bilateral APAs has been established in Belgium. Bilateral APAs are concluded by the Belgian competent authorities (ie, the FPS Finance, General Admin - istration of Taxes, Central Services, Service International Relations, Division Commentary). After the written request is filed by the taxpayer, essentially a discussion/negotiation between states takes place where an agreement may or may not be reached. During the negotiation process, the competent authorities may request additional information from the taxpayer. When the competent authorities reach an agreement, the decision will be signed by each competent authority involved. 7.3 Co-Ordination Between the APA Process and Mutual Agreement Procedures The request for a MAP must explicitly state whether the subject of the request has already been dealt with previously, in the context of a unilateral, bilateral or multilateral APA or other agreement concluded during a tax audit. If so, a copy of this APA or agreement must be handed over to the Belgian competent authority.
A taxpayer who has obtained a unilateral APA is not prevented from also submitting the aspects that were subject to the APA to the MAP. Indeed, the fact that the tax results from a unilateral APA does not, as such, allow the refusal of access to a MAP where the taxpayer considers that the taxation resulting from the APA does not comply with the applicable tax treaty. 7.4 Limits on Taxpayers/Transactions Eligible for an APA All taxpayers subject to Belgian transfer pricing rules are in principle eligible for an APA. APAs may cover any (interpretative) issues and mul - tiple issues at once (eg, transfer pricing and permanent establishments). However, an APA cannot be granted if: • it would be inappropriate or ineffective because of the statutory or regulatory provi - sions referred to in the request; • the request concerns application of any tax law concerning collection or prosecutions; • at the time the application is filed, essen - tial elements of the situation/transaction described are connected with a tax haven that does not co-operate with the OECD; or • the operation or transaction described does not have economic substance in Belgium. 7.5 APA Application Deadlines A unilateral APA is only valid if it is issued before the intended transactions or situations have pro - duced effect from a tax perspective. The Ruling Commission takes the position that a situation/ transaction has produced effect from a tax per - spective from the moment the tax return related to the taxable period during which the situation/ transaction occurred is filed. On its website, the Ruling Commission specifies that the request for a unilateral APA should be submitted at the latest by 30 November of the calendar year to
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