Estate planning
Discretion
Initially, there was fear that the new capital gains tax would lay the foundation for the introduction of a general wealth register. However, some capital gains will in future be able to continue to enjoy discretion by opting for the ‘opt-in’, both during the transitional period (from 1 January until 1 June 2026) and after 1 June 2026. In that case, only the final movable withholding tax applies. Concretely, this means that the tax authorities will not gain insight via the new capital gains tax into the frequency and size of stock exchange transactions.
Impact on wealth planning
Donations
Transfers without consideration (such as donations, inheritances) are not included in the capital gains tax. Since there is no capital gains tax upon inheritance or gift of financial assets, the acquisition value of the donee or heir is equal to the price paid for the asset by the donor or testator (or value determined per 31 December 2025). If the donor or testator also acquired the financial asset free of charge, then the price at which their legal predecessor acquired the financial asset is retained as the acquisition value, and so on.
Impact on undivided ownership (onverdeeldheid/indivision)
The capital gains tax applies to any termination of undivided ownership, unless the termination results within a period of 3 years from a death, divorce or termination of legal or de facto cohabitation.
The minister confirms that this exemption can also apply in case of a voluntary purchase in undivided ownership when one of the co-owners of an existing undivided property passes away and the other co-owners subsequently terminate the undivided ownership. According to the minister, this also applies when a gift occurs in undivided ownership, and the undivided ownership is effectively terminated within three years after the donor’s death.
Impact on ordinary partnerships (maatschap/société simple).
The minister states that entering or terminating an ordinary partnership as such does not lead to an implicit exchange moment, so in principle this is not subject to capital gains tax. However, if there is an implicit exchange moment, there is a partial transfer and thus taxation arises in principle. In the Explanatory Memorandum it has been clarified that the general exemption for the contribution of shares applies to the contribution of shares into the ordinary partnership.
An implicit exchange moment arises, for example when during the lifetime of an ordinary partnership a new partner joins the ordinary partnership or in case of the exit of a partner.
The finance minister also confirms that upon the dissolution of the ordinary partnership, there will be no realization event if the underlying assets are simply allocated to partners in undivided ownership in the same proportions. The minister concludes that transfers within the family via an ordinary partnership remain entirely possible, although he acknowledges that in the future the specific rules of the capital gains tax will need to be taken into account.
The minister also confirms that the calculation (example) of the Explanatory Memorandum. This means that the roll-over of the original acquisition value should be approached as a whole and thus without considering the position of individual partners.
Notwithstanding the minister’s clarifications, the calculations of the taxable base will cause the necessary complexity and administrative burden.
Unexpectedly the minister confirms that the transfer for consideration of the shares of an ordinary partnership not holding any financial assets falls within the capital gains tax’ scope. This would imply that ordinary partnerships holding art, real estate, or classic cars would be subject to capital gains tax when their shares are sold.
Impact on the foundation-administration office (STAK)
Also important is the impact of the capital gains tax on other tax transparent structures (such as the foundation-administration office (StAK)). The Explanatory Memorandum is reassuring regarding StAKs falling under the scope of the certification law. The regime of tax neutrality of certification is therefore not jeopardised.
Impact of the marital property regime
It was unclear whether the contribution of a portfolio to the marital community between spouses gives rise to any form of capital gains tax. According to the finance minister the answer is negative. Although there is a transfer (at least economic) of the portfolio, it does not constitute a transfer for consideration.
To qualify for the substantial interest regime each individual shareholder needs to have a 20% participation. When shares belong to the marital community the minister has clarified that the marital community needs to own 40% of the shares. Regarding shares for which titre et finance applies the finance minister specifies that the spouse in whose name the shares are registered needs to hold a participation of 20% of the shares of the company in order to qualify for the regime.
Usufruct situations
If a financial asset is encumbered by an usufruct and the full property (or bare property) of the financial asset is sold, the law designates the bare owner as the taxpayer.
Furthermore, the finance minister has clarified that there is no taxable capital gain upon the mere sale of usufruct by the usufructuary. This is also the case when the usufruct is converted into a sum of money. Following the finance minister there is equally no realization upon extinction of the (statutory) usufruct by, for example, death. However, the finance minister also points out that the tax administration will monitor for potential abuse or artificial avoidance of capital gains tax through usufruct transfer techniques.
Long term incentives & management incentive plans
Stock options
Stock options that are accepted in writing within 60 days following the offer are taxable at grant in Belgium and no longer at exercise. Today, no further taxation takes place at the moment of the sale of the shares.
As of 1 January 2026, the capital gain realized at later sale of the shares will be calculated on the value increase after exercise. The acquisition value of the share for capital gains tax purposes will thus not be based on the exercise price of the option. This entails that the exercise gain itself will not be subject to the new capital gains tax.
Example
If options with an exercise price of 10 EUR are worth 12 EUR at exercise and are sold for 15 EUR, 3 EUR will be subject to capital gains tax.
For tradable options that are offered as alternative pay-out methods for short-term incentives (so-called warrants and over-the-counter options offered by financial providers), the acquisition value of the option will be determined based on the higher of (1) the market value at the time the option becomes tradeable or (2) the taxable value under the stock option law. For the over-the-counter options, this means the value at expiry of the one-year waiting period will in practice be taken into account.
Example
If over-the-counter options are worth 10 EUR at offer, 11 EUR at the end of the blocking period and 13 EUR when they are sold to the bank, 2 EUR will be subject to capital gains tax.
Free or discounted shares
For free shares (e.g. restricted and performance share plans) and shares purchased with a discount, the discount, which was already taxed as professional income or exempt under the 100/120-rule, will not be taxed again.
For shares acquired at a discount under the specific tax regime of article 7:204 of the Code of Companies and Associations (tax-free discount of 20% for shares that are inter alia blocked for 5 years), the value at the moment of acquisition will be considered (not the price paid).
Example
For shares bought at 80 EUR whilst the stock price is 100 EUR, capital gains tax will be due on 10 EUR if they are sold for 110 EUR.
Management Incentive Plans
In the context of a private equity investment or buy out, often co – investment is envisaged for key stakeholders – individuals (investment managers, executives). These schemes will also be targeted by the new legislation, to the extent the realized gains do not qualify as miscellaneous or professional income.
During the parliamentary process, the finance minister emphasized that under the new law co-investment structures and MBO structures are not at risk to fall in scope of the internal capital gains regime. To provide more legal certainty, the finance minister has announced that this position will also be confirmed in a circular letter later.
Structures though whereby such co – investment is done via an investment into a private privak, would remain out of scope though (given the exemption of withholding tax for distributions stemming from sales of shares by the privak).
Financial Services Industry
Apart from a more increased compliance burden for the financial sector (new withholding tax obligation, additional ‘DAC 6 – like’ obligations, it is also expected that the combination of the new tax, with the application of the Reynders Tax, will lead to more complex calculations and obligations.
The Reynders Tax will continue to apply alongside the new capital gains tax on financial assets. Specifically, for funds falling in scope of the Reynders Tax, the interest component of capital gains realised on investment funds subject to the Reynders Tax will be taxed at 30%, while the remainder of the capital gains exceeding the EUR 10,000 / EUR 15,000 exemption threshold will be taxed at 10%. This implies that the reporting requirements related to investment funds under the Reynders Tax (such as Asset Test and TIS computations) will continue to apply. An additional layer of complexity in the reporting computations will be that both the interest component (for Reynders tax purposes) and capital gain component (for the new capital gains tax purposes) need to be determined for each Net Asset Value (NAV), and that furthermore for the capital gain component NAV as per 31 December 2025 needs to be determined as historical capital gains built up before 1 January 2026 are exempt.
Considerations for private investors
Transparent funds (such as an SCSp or LP) remain tax transparent – including for capital gains tax – provided their managers supply investors with sufficient information regarding underlying income (often referred to as ‘ventilation’). However, practical difficulties may arise, particularly concerning the deemed exchange moment for open-ended funds. For Belgian investors participating via a Private Privak/Pricaf Privée, the finance minister has confirmed that the tax exemption for dividends derived from capital gains realized by the vehicle remains in place.
The finance minister also clarified that gains realized upon the redemption of bonds at maturity, as well as cash settlements of derivatives, fall within the scope of capital gains tax.
Valuation matters: prudency required
The legislation introduces the need for valuation of the shares in the top tier entity of the group, at the cut-off date of 31/12/2025. It is important to be mindful that various ‘instances’ in a corporate group and its ownership chain, may lead to a valuation triggering event under the new law of capital gains tax (inheritance or donation of shares in context of estate planning; an intra group sale of a part of the business for TP purposes; the issuance of stock options by the group under the Law of 1999; etc.). One needs to be sure that the valuation methodology used is consistent across the board, and that there is an ‘info sharing’ governance foreseen from owner to management and vice versa, to mitigate risk of discrepancies, causing potential tax risks.
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