Further relaxation of the rules on the
assessment of secret commissions
February 2022 – If a company does not declare to whom it has paid certain sums, it must itself pay tax on these payments. This tax is not insignificant, but there are ways to avoid it. A new loophole was added to the list in mid-2021.
Assessment on secret commissions
As a company, if you pay a salary, a fee, a commission, etc., you must always declare to whom you have paid this sum. Different types of remuneration require different types of forms, e.g. form 281.10 for wages and form 281.50 for commissions, brokerage fees and other remuneration for which no invoice has been issued.
If you do not declare to whom you have paid the remuneration, the deduction of this charge will be refused and you will have to pay the tax on this remuneration yourself. This will usually happen if, during an audit, the tax authorities find that certain expenses have not been documented by invoices or records. According to the tax authorities, this indicates that there has been a 'black market' payment.
Previously, the rate of this special contribution was 309%.
But in 2020, the rate was reduced to 100%, unless you can prove that the beneficiary is a legal person, in which case the rate is 50%. In practice, this means that the rate is 100% when the sum has been paid to a natural person.
Avoiding the special levy
When the 50% or 100% rate was introduced, the legislator came up with two ways to escape the tax. Firstly, you can escape the tax if you can prove that the recipient of the remuneration has declared the remuneration (and if the remuneration is therefore subject to its normal tax regime).
The second way to avoid the special contribution is to inform the tax authorities of the identity of the recipient of the remuneration. You have two years and six months to do this.
This period begins on 1 January of the relevant tax year.
Let's take the example of a fee paid in 2021. In most cases, this remuneration relates to the 2022 tax year. You then have until 30 June 2024 to inform the tax authorities of the identity of the recipient of this income.
The reason for the two and a half years is that the tax authorities still have time to tax the recipient of the income.
Third loophole
A third 'opportunity' was added to the list in June 2021.
When the identification of the beneficiary took place after the period of two years and six months, you as a company had to pay the special assessment. Even if the beneficiary had been taxed on the remuneration (the first loophole). This was irrelevant in the case of late identification.
This nonsense has now been eliminated: even if you did not inform the tax authorities of the identity of the recipient of the remuneration 'in good time and in a clear manner' - i.e. within two years and six months - the special levy is not due if your company can still prove that the recipient has paid tax on this remuneration.
