Change procedure optional VAT liability

In Belgium, any person who, other than in the exercise of his VAT taxable economic activity, has erected or acquired a "new" building or part of a "new" building with application of VAT, has the right to opt for the status of coincidental VAT taxpayer when the latter wishes to sell this immovable property or to establish or (re)transfer a right in rem on it with application of VAT. One of the conditions is that the property is still considered "new" within the meaning of the VAT code, i.e. the transfer of the property or of the right in rem takes place no later than 31 December of the second year following the year of the first occupation or first use of the building or part of building in question.

The advantage of this optional VAT liability is that the VAT on the establishment or purchase of the real estate can be recovered in this way. The Belgian VAT administration requires certain notification and declaration formalities to be complied with in order for the optional VAT tax liability to be exercised, namely:

1. Prior to the sale, the seller is obliged to submit to the VAT authorities an advance declaration on paper (declaration no. 104.1);
2. An express statement of the intention to dispose of the property with VAT or to create or (re)transfer the immovable right in rem with the application of VAT must be included in the first deed concluded between the parties. When disposing of a property, this is usually the contract of sale (although it is accepted that this intention is concretised in a promise of sale). Upon submission of Declaration No 104.1, the transferor or transferee receives a file number from the VAT administration, which the notary includes in the deed of transfer or establishment. This file number provides assurance to the notary and the co-contractor that the sale is taking place under the VAT regime.
3. After the sale, the seller must submit a special declaration (declaration no. 104.5) to the VAT administration. This declaration no. 104.5 shall be submitted within the month after the VAT has become due and must state the amount received from the buyer (taxable amount and VAT), the VAT deducted and the difference between the VAT due and deductible on the part of the seller (or transferor). The VAT balance will have to be paid or refunded, as the case may be.

In response to the administrative burden these formalities imposed on the VAT administration, it was decided to simplify and modernise the aforementioned procedure.

The obligation to submit prior declaration no. 104.1 will be abolished without further ado. The follow-up of real estate transactions with application of VAT will henceforth be done on the basis of the first deed between the parties showing the transferor's intention to apply VAT to the sale or on the basis of the notarial deed between the parties. Thus, the aforementioned step 1 in the administrative procedure will be abolished. However, step 2 (entry of intention to apply VAT) and step 3 (filing of special declaration (declaration no. 104.5)) remain valid