Since a fiscal representative is liable for the VAT due, penalties and interests on behalf of the foreign taxable person he represents, the fiscal representative has to pay a guarantee, either through a bank guarantee or a cash deposit. Currently the amount of the guarantee in principle amounts up to 25% of the VAT due on an annual basis. As from 1 October 2021 new rules go into force with regard to this guarantee, applicable in the case of individual fiscal representation and global representation (Royal Decree dd. 29.06.2021 amending Royal Decree n°31, art3). The guarantee has to be made in the form of a bank guarantee or a cash deposit and cannot longer be provided trough a group company. For new files the new rules will already be taken into account.
Unofficial translation Royal Decree no.31, article 3
The liable representative referred to in Article 1 or the pre-approved person referred to in Article 2 must be able to enter into contracts, be established in Belgium, be sufficiently solvent to meet the obligations imposed on taxpayers by the Code or in implementation thereof, and agree to represent the taxpayer.
The solvency of the liable representative or of the previously recognized person is assessed by or on behalf of the Minister of Finance, taking into account their obligations.
If the liable representative or the pre-approved person is not sufficiently solvent, a security is requested to guarantee the collection of all that may become due in terms of taxes, fines, default interest and costs borne by the represented taxpayer(s). It is periodically reviewed taking into account the obligations of the responsible representative or pre-approved person.
The amount of the security is set at a maximum of one quarter of the tax payable by the non-resident taxpayer over a period of twelve calendar months. In the case of representation under a global number by a person recognized in advance, the security is set at a maximum of ten pc. of the tax due for all the taxpayers represented.
When a person recognized in advance has two global numbers, the amount of the security will be determined in function of all the transactions performed under the two numbers and it may be used without distinction, in whole or in part, to sums owed for the transactions performed under one or the other of these two numbers.
The security may consist of a first-rank mortgage on immovable property located in Belgium, a suretyship in cash, a suretyship in securities or a personal suretyship from an insurance company or from a bank or private savings bank that carries out their activities in Belgium.
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