Two judgments of the Court of Appeal (Ghent and Antwerp) have shown that the distinction between the free provision of a dwelling by a natural person or a legal person when calculating the benefit is unconstitutional.
On this subject, on 15 May 2018 the Federal Public Service Finance published a circular (2018/C/57) on the flat-rate estimate of benefits in kind for the provision of housing to employees or managers free of charge.
The government is currently looking into ways of eliminating this discrimination, but in the meantime it has been decided to follow the aforementioned case law. Consequently, where a legal person makes a dwelling available to an employee or manager, the taxable benefit will be estimated uniformly at 100/60 of the indexed cadastral income of that dwelling, increased, where appropriate, by 2/3 if it is a furnished dwelling.
The actions to be taken should of course be examined on a dossier by dossier basis, but the following actions can be generally accepted. It should also be noted that the action points below only apply if the VAA is charged for occupation by means of a fiche. If it runs through a current account, there is a rental income so that Article 18, § 3, 2 of the Royal Decree on Income Tax (KB) 92 is not applicable.
If the objection period has not yet expired, it is recommended to lodge an objection. On the other hand, requests for ex officio exemption are rejected by the administration on the grounds that a change in case law is not regarded as a new fact.
As the benefits have already been indicated on the sheet, the following options are available:
According to the circular, Article 18, §3, 2, first paragraph, of the Royal Decree on Income Tax 92 can be applied for the 2018 income year, pending the new method that will be announced.
Finally, it should be emphasised that the adjustment of the SG&A may create an imbalance with the costs incurred in the company. As a result, it cannot be ruled out that the administration may wish to challenge the deduction of costs on the part of the company. A certain degree of vigilance is therefore required in the case of usufruct schemes.