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www.Droit-Fiscalite-Belge.com - Association sans but lucratif

Droit Fiscalité belge


Site d'informations fiscales, juridiques et comptables en droit belge

Belgium had for decades statutes both for domestic and international not-for-profit organizations (acts of 27 june 1921 and 25 october 1919).

These statutes have been deeply revisited by a law of 2 May 2002, supplemented by several royal decrees (15 may, 26 june and 19 december 2003). All these texts can be found on www.moniteur.be in French or Dutch.

Here is a summary of the new regime applicable to not-for-profit organizations in Belgium.

The existing NPOs have to adapt themselves to the new regime for 1st January 2005, except concerning the rules concerning the accounts, where they have one year more to fulfil the new obligations.

A.      Several categories of not-for-profit organizations

The new legislation provides for four categories of not-for-profit organizations, having their seat in Belgium:

1.      "Association Sans But Lucratif" (ASBL) : this is the most common framework, asking that the association fulfils mainly the following criteria:

-          the very purpose of the association is not a commercial activity,

-          there is no will from the members to take some material profit from their participation to the association,

-          there are at least three members (being Belgian or foreigners),

-          in case of liquidation, the remaining balance has to be used for a not-for-profit goal.

2.      "Association Internationale Sans But Lucratif" (AISBL): this is a framework existing since 1919, having many common features with the "ASBL", but with the word "international" in its denomination, and fulfiling mainly the following criteria:

-          the very purpose of the association is not a commercial activity, but a not-for-profit goal with an international dimension. This international dimension will be clearer if the membership is itself international, but this is not a condition. Conversely, there is no request anymore that the management of the AISBL includes at least one Belgian member,

-          there is no will from the members to take some material profit from their participation to the association,

-          in case of liquidation, the remaining balance has to be used for a not-for-profit goal,

3.      "Fondation Privée" (private foundation): this is a new framework, that has to fulfil mainly the following criteria:

-          the foundation has received from his founder(s) a gift in consideration of a not-for-profit goal. However, there is no minimum value for these initial assets. The founder is not necessarily a natural person: another association, or even a company, can be a valid founder,

-          there is no will from the founders or Board members, and not even from third parties, to take some material profit from the foundation. However, there can be a material interest for third parties, if this is required for achieving the not-for-profit goal of the foundation. For instance, a foundation established for helping a disabled child may give some support to this child,

-          the foundation will need an act by a public notary,

-          in case of liquidation, the remaining balance has to be used for a not-for-profit goal, but the founder or his legal successors may take back the gift or the value of the gift the founder has made while establishing the foundation.

4.      "Fondation d'Utilité Publique" (foundation of public interest): this framework was known under the previous legislation under the name "établissement d'utilité publique"; it has to fulfil the criteria set for a private foundation, and have moreover a philanthropical, philosophical, religious, scientific, artistic, educational or cultural aim.

These four categories vary along some structural lines.

For instance, ASBL and AISBL will have some kind of general meetings of the members (every year for the ASBL but possibly on a less frequent basis for an AISBL), while the foundations may work only with a Board. Indeed, foundations have no members.

Within the ASBL, the rights of the members are very stricty enforced.

Any appointment of a Board member has to be done by the general assembly of the members.

Any exclusion of a member has to be decided by a special majority within the general assembly.

But the general assembly may change the charter of the association, without unanimous consent by the members.

All members of an ASBL have the right to read and investigate the minutes of the Board, as well as the financial documentation of the association.

This is one of the most controversial innovation of the new law.

There are some expectations for amending this rule before the date provided for its implementation (1st january 2005).

The NPOs become a separate legal entity as from they have their  charter registered within a public file (ASBL and private foundation), or after a royal decree (AISBL and foundation of public interest).

The need for a royal decree makes a clear distinction between ASBL and private foundations on one hand, and AISBL and foundations of public interest on the other hand. Indeed, ASBL and AISBL are similar on many other points, while private foundations and foundations of public interest have many rules in common.

Some principle of corporate governance have been introduced within the new statute.

For instance, the Board of an ASBL may not be a single person, and may not have as many members as the general assembly has: there must be at least one more member of the general assembly with regard to the membership of the Board.

The charter of a foundation must include a procedure for solving any conflict of interests arising within the foundation.

A private foundation can be converted to a foundation of public interest.

An ASBL can be converted within a not-for-profit company.

The not-for-profit companies ("Société À Finalité Sociale" - SFS) are another category of NPOs, but provided for by the company law (articles 661-669 of the Company Code).

They are intended for commercial activities (a purpose forbidden within the framework of an ASBL or AISBL, but surprisingly allowed for a foundation), but without any will to give material benefit to the associates (or just a little interest on their personal capital contribution).

The SFSs is not really a success story, due to the many legal constraints they have to fulfil (limitation of the number of votes an individual associate may have, right for any worker to become an associate, etc.).

B.      Common features for all kinds of NPOs in Belgium

The main common feature, which is also one of the most fundamental changes carried by the new law, has to be found with the new accounting standards.

All ASBL, AISBL and foundations have to publish annual accounts.

They have to send these accounts to an official public file : either the tribunal (for small ASBL and small private foundations), or the ministry (for foundations of public interest), or the Central Bank of Belgium (for big ASBL and big private foundations).

When the accounts have been published according to the last system, they are very easily accessible (even through internet).

There are two different accounting regimes :

-          one for small NPOs, that have to record their cash expenses and cash receipts, but that have also to draft a so-called simplified balance of their assets and debts,

-          one for the big NPOs, that have to satisfy the accounting rules provided for by the company law, with some pecularities.

A NPO becomes big whereas it exceeds, for one year, two of the three following criteria :

-          5 workers (in equivalent full time),

-          250,000 € of usual cash receipts,

-          1,000,000 € for the total of the balance sheet.

Moreover some NPOs have to submit their accounts to a check by a legal auditor.

This is relevant for NPOs having 100 workers, or exceeding two of the three following criteria:

-          50 workers,

-          6,250,000 € of usual cash receipts,

-          3,125,000 € for the total of the balance sheet.

The legal auditor is appointed by the general assembly of the members (ASBL) or by the Board (AISBL and foundations).

He has not only to check the accounts, but also the legality of the expenses of the association in relation with the law and with the charter of the association.

In all kinds of NPOs, there is a principle of limited liability towards third parties, both in favour of the members (if any) and for the Board members (except if they commit a misdemeanour).

As opposed to the companies Board members, associations Board members are however not concerned by a set of special criminal rules.

But of course, they are concerned by the general rules included in the Criminal Code of Belgium.

The judge has the power to liquidate associations that do not respect severely the law.

A judge decision is moreover the only way to liquidate a foundation.

C.      Foreign NPOs

The new Belgian law is also relevant for some foreign NPOs.

When they have an "operational centre" within the Kingdom, they have to register with a public file in Belgium.

This public file will contain, among other documents, their charter and the identification of the managers of the Belgian operational centre.

They will also have to publish the yearly accounts of this centre.

Any foreign association not fulfiling its obligations may be forbidden from having an operational centre in Belgium.

It may also have its judicial claim dismissed by the judge.

D.      Tax regime

The new law does not change much concerning taxes.

Most NPOs in Belgium have not to pay any tax on their possible profit.

But they have to pay a tax on the value of their fixed assets (0,17 % every year), as well as cedular taxes on certain kind of bruto incomes (interests, dividends, royalties, real property incomes, etc.).

Moreover, some (little) fees have to be payed for publishing the charter of the association, the names of the Board members, the accounts, etc.

These publications have to be done in one of the official languages of Belgium (Dutch, French or German).

Indeed, English can be used internally, but not for official publications.

E.      Conclusion

The new Belgian law has revisited the set of NPOs formulas.

Belgium is known since 1919 for allowing foreigners to participate fully to NPOs having received a separate legal entity under the name "International Associations": this has not been changed.

The main changes concern the accounts, that all NPOs, including foreign NPOs having an operational centre in Belgium, will have to publish as from 2006.

This is a move favouring transparency, responsibility and good governance. Maybe Belgium is again opening the way for a world change.

Un article de  Michel DE WOLF
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> Not-for-profit organizations : a new status in Belgium

21 avril 2005

In order to publish the annual accounts, there is a special form to be filled ? An ASBL which has been setup in february 2005 when needs to publish his annual accounts at the latest ? Thank you,

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