It’s a never-ending saga. Established by certain municipalities in the 1970s, taxes on second homes have long been in the sights of justice.
Historically, “it was a compensatory tax to try to re-establish equality between resident owners, who pay additional municipal taxes on personal income, and owners of second homes who do not, ”explains lawyer Martin Jaspar.
“This tax is notably justified by the desire to finance municipal infrastructure. However, both people domiciled in these municipalities and those who have a second home and stay there occasionally benefit from the municipal infrastructure. This tax only due by owners of second homes creates discrimination. She has been sentenced several times in court “, adds Me Baptiste Verbruggen, tax lawyer at Dekeyser & Associés.
“This tax only payable by owners of second homes creates discrimination.”
Where the courts have also ticked off is the fact that, out of the ten coastal municipalities, three of them, more precisely Knokke, Koksijde and De Panne do not apply any additional PPI for their residents, their rate being exactly 0%. “The argument for a countervailing tax was therefore not valid”, underlines Me Jaspar, who adds: “The message is clear. We give an advantage to those registered in the municipality to the detriment of the owners of second homes.”
Me Grégory Homans, tax lawyer at Dekeyser & Associés, figures: “The annual tax on second homes amounts, in 2020, to 760 euros for Knokke, from 968 to 1,168 euros for Koksijde and from 575 to 775 euros for De Panne. Some of these municipalities should also soon increase this tax. “
Strong increase in tax
In addition to the difference in treatment between residents and non-residents, between 2006 and 2014, all municipalities taxing second residents increased their tax, on average, by 79%. “The municipalities of the Belgian Coast have increased the rate of these taxes to such an extent that they constitute today one of their main sources of financing. The tax on second residences even exceeds the revenue from the additional centimes to the ‘personal income tax “, points out Me Jaspar.
The Ghent Court of Appeal and the Court of Cassation have ruled on the constitutionality of these taxes on several occasions. Case law has also condemned them on the grounds that the municipal tax regulations which establish them violate the principles of equality and non-discrimination.
From a compensatory tax to a wealth tax
Since this tax cannot be considered as “compensatory”, despite the multiple attempts at argument systematically swept away by the courts, the coastal municipalities have deployed the justification of a “wealth tax” in order to maintain this tax. The possession of a second home would be, according to them, the index of a certain contributory capacity, which justifies a tax being levied on certain wealthier taxpayers.
“This argument is also problematic, because the municipalities put in the same basket fixed caravans as well as studios, apartments, or villas with swimming pools. By putting all owners of a second residence on an equal footing, regardless of the type of property, its surface area or its purchase price, the tax regulations violate this principle of equality which requires making a distinction between the different owners, ”explains the lawyer.
“In addition, if the possession of a second property can be considered as an indication of fortune, in what way does the fact that a person is domiciled in this property or not constitute an indication of the existence or the lack of a certain financial capacity? The fact that there is no registration in the population registers for the property subject to tax does not constitute an indication of ease “, adds Martin Jaspar.
“The fact that there is no entry in the population registers for the property subject to tax does not constitute an indication of ease.”
The Ghent Court of Appeal therefore decided, in several judgments delivered between September 2019 and March 2020, that in the absence of justification for the difference in treatment introduced by the various tax regulations, they violate Articles 10 and 11 of the Constitution and cannot be applied, so that taxes should be waived.
What about the affected owners?
The owners of a second residence at the Coast can still file a complaint with their municipality concerning the enrollment of the tax (income 2019). Concretely, from the date of dispatch of the extract-de-roll warning (AER) by the tax authorities (date which appears on the AER itself), the owners have a three months and three days to make this complaint. “The municipality then has a period of 6 months to respond. If it does not rule within this period or if it rejects the owner’s claim, the latter may seize the competent court”, details Mr.e Jaspar. An appeal to the court can in fact be considered, both when the municipality maintains the taxation and when it does not rule within six months.
“An administrative appeal offers good prospects for success, particularly with regard to case law favorable to taxpayers.”
Me Sébastien Thiry, tax lawyer at Dekeyser & Associés, confirms this: “For the taxpayers concerned, an administrative appeal and optionally, judicial review offers good prospects for success, particularly with regard to case law favorable to taxpayers. A restitution procedure spanning five years (from 1is January of the year in which the tax is collected) could also be considered under certain conditions (automatic relief). “
“Municipalities are counting on the low number of appeals from their secondary residents.”
For their part, the coastal municipalities have not yet decided to review their position on this tax, which has been repeatedly reset. “They maintain their tax and rely on the low number of appeals from their secondary residents”, explains the lawyer, who illustrates: “For example, in Koksijde, there are 16,000 owners affected by this tax. Even if 10 % of them lodge an appeal, this will only slightly impact the income of the municipality. Generally, people are indeed reluctant to lodge an appeal, even though the tax is irregular. ” But it is also possible to do this via a “class action”, that is to say with several owners of the same municipality, in order to bring together the same recourse, which makes it possible to share the costs.