Les nouveaux défis de la fiscalité des ASBL après le Code des sociétés et des associations

The Belgian Code of Companies and
Associations (CCA) has substantially reformed
the law on legal persons. An act of 17 March
2019 made the necessary adjustments to
the legislation in order to guarantee that this
reform is tax neutral. What repercussions
could the CCA have on the current income tax
system applicable to non-profit associations
(ASBL/VZW)? This is the question at the heart
of this article.
Firstly, we will talk about the income tax
system applicable to non-profit associations
before the CCA. Based on the assumption
that the taxpayer whose tax position we are
seeking to determine (liable for tax on legal
persons or corporate tax) is a non-profit
association with its tax residence in Belgium,
the reasoning to be applied comprises a
maximum of three steps:
1. Does the non-profit association engage
in an activity or operations of a lucrative
nature?
2. If this is the case, does it act mainly or
exclusively in a privileged field (Article 181
of the Income Tax Code 1992)?
3. If not, does it confine itself to carrying out
authorised operations (Article 182 of the
Income Tax Code 1992)?
Secondly, we consider how this system is
set to develop with the CCA. If the line of
reasoning remains as it is, the interpretation
that will be given for two categories of
authorised operations raises a question.
Although lucrative operations are carried out,
these will not lead to liability for corporate
tax if these operations do not implement
industrial or commercial methods or if
they are ancillary economic operations. So
carrying out ancillary economic operations
only will still present an issue, but only in tax
terms