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Wednesday, 04 May 2022

Belgian reporting (tax) obligations for platform operators in anticipation of DAC 7 seem safe from an EU perspective

In our newsflash of 2 February 2021 (click here) we informed you that Belgium had anticipated the DAC 7 regulation and had already de facto transposed it into domestic law. In brief these rules entail that platform operators are obliged to inform and to share data on their users.

Specifically on this information sharing obligation, a judgment of the EU Court of Justice[1] regarding a Belgian regional tax (tourism tax) was awaited, the result of which could indicate whether or not this Belgian preliminary transposition was EU proof or not.

The particular question from the Belgian Constitutional Court arose as to whether the information obligation under the regional tax was in breach of the European Directive on E-commerce.[2] Namely, this Directive protects the free movement of ‘information society services’ within the Union and the taxpayer – AirBnB – had argued that the information obligation was disproportionate. However, the Court of Justice decided that the information obligation in question was / is indissociably linked to the legislation of which it forms part. And as that is a tax legislation, of which the information obligation must ensure that it can be correctly applied, the information obligation falls within the field of taxation, which is not covered by the Directive on E-commerce.

In addition to this, the Court of Justice also declared that the Belgian income tax information obligation for platforms operators that connect suppliers of services to their customers does not hinder the freedom to provide services under EU law. In other words, for tax purposes, such information sharing obligation is merited and allowed.

 

In case you have further questions on this publication or want to discuss a tax query, please do not hesitate to contact the author(s). 

This newsflash is for information purposes only and cannot be relied upon as legal advice.


[1] In a case of 27 April 2022, C-674/20.

[2] Directive 2000/31/EC of 8 June 2000.

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