Whistleblower status in tax law: Circular 2026/C/39

EU Directive 2019/1937 transposed into Belgian law and implemented by Circular 2026/C/39 of the Anti‑Fraud Coordination Service (CAF) – Circular dated March 13, 2026.

Tax fraud is not always detected from outside an organisation. Often it is the people who work in or around it who are direct witnesses, but without a secure framework to act. It is precisely this gap that the European and then Belgian legislator sought to fill, by requiring Member States to establish reliable and confidential reporting mechanisms.

Directive (EU) 2019/1937 of 23 October 2019 on the protection of whistleblowers laid the foundations for a harmonised system at European level. Transposed into Belgian law by the law of 28 November 2022, which entered into force on 15 February 2023, it was administratively implemented by Circular 2026/C/39 of 13 March 2026, published by the Anti‑Fraud Coordination Service (CAF). This circular defines the practical arrangements for handling tax reports falling within the competence of the FPS Finance.

The objective of this legislative framework is twofold: to encourage the detection of tax fraud and to protect whistleblowers against retaliation.

Who is protected by the scheme?

The scheme is a significant step forward, as it adopts a broad conception of protected persons. The law of 28 November 2022 applies to any person who has obtained information about possible tax fraud in a professional context.

Under Article 6 of the law, the following are covered:

• current and former workers;
• self‑employed persons;
• shareholders and members of governing bodies, including non‑executive members;
• paid or unpaid trainees;
• subcontractors and suppliers;
• and even job applicants for information obtained during the recruitment process.

This last extension is particularly noteworthy because it means that a person who has never joined the organisation can nevertheless benefit from the scheme if they became aware of fraud during interviews or exchanges prior to any engagement.

The law also extends protection to facilitators (persons helping the whistleblower in their démarche) as well as to colleagues and relatives who may be subject to indirect retaliation.

What can actually be reported?

The reports may cover all tax matters within the competence of the FPS Finance, such as personal income tax, corporate income tax, VAT, excise duties, and customs.

However, to fall within the whistleblower regime, the report must concern facts of tax fraud likely to harm the public interest. A procedure initiated solely in a personal interest or in the context of an individual dispute does not fall under this scheme. Likewise, facts of harassment or violence at work are covered by other mechanisms and are not covered as such by the circular.

How can fraud be reported?

Circular 2026/C/39 provides for three distinct reporting channels:

1. The secure online form set up by the FPS Finance (https://eservices.minfin.fgov.be/webForm/public/fraude/fraude.jsf), presented as the preferred channel.
2. The internal reporting channel organised by the employer, the procedures of which are defined within each concerned company. Under Articles 11 and 26 to 31 of the law, these procedures must guarantee the confidentiality of the whistleblower’s identity, the protection of personal data, diligent handling of the file, and the absence of retaliation.
3. The Federal Ombudsman, who can be contacted in all cases.

The circular also indicates that a whistleblower wishing to report tax fraud “must imperatively” use the secure form of the FPS Finance, the other two channels appearing to be presented only as subsidiary.

What are the guarantees for whistleblowers?

Confidentiality: The identity of the person making the report cannot, in principle, be disclosed without their express and free consent. The circular also recalls that reports can be made anonymously. This protection also covers information that would make it possible to deduce directly or indirectly the identity of the whistleblower.

Protection against retaliation: This can take many forms, direct or indirect: dismissal, demotion, refusal of a promotion, unfavourable change in working conditions, disciplinary sanction, harassment, marginalisation, or damage to reputation. The protection therefore covers any prejudicial measure taken in reaction to the report.

Condition of good faith: The protection of the whistleblower presupposes that the report was made in good faith, on the basis of information that the author could reasonably consider to be accurate, and in accordance with the prescribed procedures. It therefore does not cover deliberately false or abusive reports.

When tax authorities go too far: ECtHR condemns lack of safeguards in accessing bank data

Ferrieri and Bonassisa v. Italy (ECtHR, January 8, 2026)

In a case brought before the European Court of Human Rights, two Italian taxpayers discovered that the tax administration had requested their banks to transmit all of their bank data (accounts, transactions, financial operations) in the context of tax audits. These measures had been internally authorized by the administration, without any judicial intervention and without prior detailed information to the individuals concerned.

The applicants complained of a system allowing very broad access to bank data without sufficient safeguards. In their view, Italian law was too vague, left excessive discretion to the administration, and provided for no effective control, either before or after the measure.

The government argued, on the contrary, that these measures were based on a clear legal basis and pursued the legitimate aim of combating tax fraud, with procedural guarantees and existing remedies.

The European Court of Human Rights recalls that access to bank data constitutes an interference with private life protected by Article 8 of the ECHR. While the fight against tax fraud may justify such interference, it must nevertheless be “in accordance with the law” and accompanied by sufficient safeguards against arbitrariness.

However, the Court finds that the Italian legal framework is insufficient. The texts are too general and leave the authorities excessive discretion, while the criteria derived from administrative circulars are not binding and the authorisations need not be reasoned. Above all, procedural guarantees are lacking: no prior judicial control, and ex post remedies are ineffective or uncertain.

The Court therefore concludes that the system does not adequately protect against arbitrariness and that the interference cannot be considered “in accordance with the law”. It therefore finds a violation of Article 8 of the ECHR.

Emphasising the systemic nature of the problem, the Court invites Italy to reform its legal framework by specifying the conditions for accessing bank data, requiring reasoned decisions, and introducing effective, judicial or independent control.

Beyond the Italian case, this judgment is likely to have repercussions in other States: any direct administrative access to bank data without effective independent control could be weakened in the light of this case law.

DAC 8: Do you hold a crypto portfolio? Don’t wait!

Directive (EU) 2023/2226 of 17 October 2023, transposed by the Law of 16 March 2026.

Crypto-assets have long lived in a blind spot of the tax administration. That is no longer the case. The European directive known as DAC 8 (Directive (EU) 2023/2226 of 17 October 2023) was transposed at federal level by a law of 16 March 2026. The directive was also transposed by the federated entities for taxes falling within their respective competences. The (federal) transposition law inserts into the Income Tax Code (CIR 92) a section devoted to “obligations of reporting crypto-asset service providers” (Articles 326/12 to 326/18).

The principle is simple: what banks have been reporting for ten years for financial accounts, crypto platforms will now report for portfolios.

It is not you who reports: it is your platform

DAC 8 does not create any reporting obligation on the part of the individual investor. The obligation lies with the “reporting crypto-asset service provider”, i.e., in the vocabulary of the MiCA Regulation, exchange platforms, brokers, portfolio managers and transfer operators.

The following are subject to Belgian reporting and due diligence obligations (Art. 326/14 CIR 92):

• providers authorised by Belgium in accordance with Article 63 of the MiCA Regulation, but also those authorised to provide crypto-asset services following a simple notification addressed to Belgium under Article 60 of the same Regulation. This second route covers credit institutions and investment firms already authorised. It is regularly overlooked;
• providers not authorised in Belgium but with a European connection: tax residence in a reportable jurisdiction, incorporation under the law of a Member State, management from a Member State or habitual place of business in a Member State;
• any provider, for reportable transactions carried out through a branch established in Belgium.

An operator not authorised under MiCA must register with a competent authority (Art. 326/13 CIR 92). This registration is unique; an operator meeting the conditions in several jurisdictions chooses its Member State of registration and therefore does not register in Belgium.

Using a non-Belgian, or even non-European, platform therefore does not provide protection. Simply, the information does not reach the Belgian tax authorities through a declaration filed in Belgium: it passes through automatic exchange between Member States (Art. 338, § 6/6, CIR 92).

What actually reaches the tax authorities

The scope is significantly broader than most investors imagine. Article 326/15 CIR 92 requires platforms to communicate, for each user:

• full identity: name, address, State(s) of residence, tax identification number and date of birth. Place of birth is reported only if the national law of the reportable jurisdiction so requires (Art. 326/15, § 3). For companies, the identification of the persons who control them is added;
• flows, by type of crypto-asset: gross amount, number of units and number of transactions for purchases and sales against fiat currency; fair market value of crypto-to-crypto exchanges, in both directions; retail payments; incoming and outgoing transfers;
• and, an often underestimated point, withdrawals to a private wallet. Article 326/15, § 2, first paragraph, 3., i), covers transfers to distributed ledger addresses that are not clearly associated with a virtual asset service provider or a financial institution. Moving your tokens to a cold wallet does not make the information disappear.

What DAC 8 does not require to be communicated, however, is the realised capital gain. The data transmitted is gross flows. Consequently, the calculation of the taxable gain remains to be reconstructed, by the individual investor as well as by the administration, and a debate remains possible.

Why 2026 is the first reported year

The first information to be reported by providers is that of the calendar year beginning 1 January 2026. The reference period therefore covers the whole of 2026.

The declaration must be filed no later than 30 June 2027, via the secure electronic platform of the FPS Finance (Art. 326/15, § 4). The directive does not impose a precise date; this date is a choice of the Belgian legislator. Thus, investors active on platforms established in other Member States will therefore see different calendars apply.

The administration then has nine months from the end of the calendar year to transmit this data to the other Member States, i.e., 30 September 2027 for the 2026 financial year. Finally, providers must have collected the self-certification of their pre-existing users by 1 January 2027 at the latest (Art. 326/16 CIR 92).

Watch your inbox

Your platform will ask you for a self-certification: a signed or authenticated document, dated, mentioning your surname and first name, your address, your tax residence jurisdiction(s), your tax identification number for each of them, and your date of birth.

Not responding is not a strategy. After two reminders left unanswered and upon expiry of a sixty-day period, the provider must prevent the user from carrying out any reportable transaction (Art. 326/17 CIR 92). In that case, your account will probably be blocked and your funds frozen. This therefore becomes a legal obligation on the part of the platform.

What if the provider does not play the game?

Article 445, § 6/1, CIR 92 organises four series of administrative sanctions:

• EUR 25,000 in the event of failure to register within the meaning of Article 326/13, § 1;
• EUR 50,000 in the event of continuation of activity after revocation of registration, these two amounts being increased by 50% for consecutive application;
• EUR 1,250 to 12,500 for incomplete provision of the information referred to in Article 326/15, increased to EUR 2,500 to 25,000 in the event of fraudulent intent or intent to harm;
• EUR 2,500 to 25,000 in the event of failure to provide or late provision, increased to EUR 5,000 to 50,000 in the event of fraudulent intent or intent to harm.

Sanctions may be waived in the absence of bad faith.

What to remember, and do

DAC 8 aims to create transparency, at the very moment when Belgium introduces a tax on capital gains on financial assets (Law of 6 April 2026, commented on by Circular No. 2026/C/74 of 22 July 2026). The conjunction of the two texts is not a coincidence.

Three reflexes are essential now.

• Respond to your platforms’ self-certification requests, failing which your funds may be frozen and your transactions blocked from spring 2027.
• Reconstruct and keep your 2026 transaction history, including acquisition price, dates and fees. The data transmitted to the tax authorities are gross flows that only you will be able to contextualise.
• If your past situation is irregular, or if the boundary between normal management of private wealth and professional speculative activity is unclear in your case, take stock before the data reaches the administration. Questioned in Parliament, the Minister of Finance himself invited the investors concerned to turn to the regularisation contact point.

Do you have questions about the tax treatment of your crypto portfolio or about the appropriateness of a regularisation? Contact us for an in-depth review of your situation.

¹ MiCA, for Markets in Crypto-Assets, is Regulation (EU) 2023/1114 of the European Parliament and of the Council of 31 May 2023 on markets in crypto-assets (OJ L 150, 9.6.2023). It covers two things: the issuance and public offering of crypto-assets, on the one hand, and the authorisation and supervision of crypto-asset service providers, on the other hand.

CJEU strikes down additional centimes charged to non-residents

Judgment of March 12, 2026 (Case C‑119/24) – Free movement of workers (Article 45 TFEU)

In a judgment of March 12, 2026 (Case C‑119/24), the Court of Justice of the European Union ruled that the additional centimes which increase the tax burden of non-residents are contrary to the free movement of workers.

Additional municipal tax or additional centimes?

In Belgium, resident taxpayers are subject to “an additional (municipal) tax on personal income tax” the rate of which ranges from 0% to 9% depending on the municipality where the taxpayer resides.

Non-residents who are subject to Belgian non-resident income tax (“NRIT”) on certain income are not subject to the municipal additional tax, but instead bear additional centimes for the benefit of the State. These centimes, initially set at a rate of 6%, currently amount to 7% of the NRIT. This mechanism aims to make non-residents contribute to the financing of Belgian public services in a way comparable to residents.

It follows from the difference between the rates of the municipal additional tax and the additional centimes that, in certain situations, non-residents bear a heavier tax burden than residents, in particular where the latter are established in municipalities applying a lower or zero rate of the municipal additional tax.

A preliminary question concerning the free movement of workers

Seized in the context of a dispute involving French residents subject to non-resident income tax, the Liège Court of Appeal referred a preliminary question to the Court of Justice on the compatibility of these additional centimes to the NRIT with Article 45 TFEU, which guarantees the free movement of workers.

A restriction on free movement confirmed

The Court recalls that, although Member States remain competent in the area of direct taxation, they must exercise that competence in compliance with the fundamental freedoms guaranteed by the Treaty.

In this case, it confirms that the federal additional centimes applicable to non-residents may, in certain circumstances, lead to a heavier tax burden than that borne by residents. This difference in treatment, which may disadvantage non-residents, constitutes a prohibited restriction on the free movement of workers.

Reimbursement of unduly paid additional centimes

Non-residents who have paid these additional centimes may, where appropriate, obtain a refund of the tax unduly collected by the Belgian State. This can be done either by way of a claim or by way of an application for an ex officio reduction, depending on whether the time limit for making a claim has been exceeded or not.

Capital gains tax

Capital gains: the 10% tax is coming (for real this time)

Here we are.

The federal government has announced the introduction of a 10% tax on capital gains realized on financial assets. This is a major reform that will impact many investors.

Which products are affected?

The tax targets capital gains on financial assets, divided into four main categories:

Financial instruments
Shares (listed or unlisted), bonds, funds, ETFs, derivatives (options, futures, swaps), savings certificates.

Insurance contracts
Life insurance (branches 21, 23, 26, and 44).

Crypto-assets
Coins, tokens, NFTs, stablecoins.

Currencies and similar instruments
Investment gold, central bank digital currencies (e.g., future digital euro), electronic money outside payment accounts.

Important exclusions to be aware of

However, the legislator has provided for several notable exemptions:

• pension savings, long-term savings, and group insurance;
• valuables (silver, jewelry, works of art, etc.), excluding investment gold;
• income already subject to 30% withholding tax (dividends, interest, coupons);
• income already subject to the Cayman tax;
• capital gains realized on the sale of jointly owned property within three years of a death, divorce, or the end of a legal or de facto cohabitation.

A partial exemption

Good news (at least in part):
the first €10,000 of capital gains per person are not taxed (including for married couples with a joint account).

This exemption can be carried forward for a maximum period of five years.

How will the tax be collected?

The tax will take the form of a 10% withholding tax, deducted directly by the financial institution or insurer, without immediate application of the exemption.

It will then be up to the taxpayer to request a refund of the exempt portion via their tax return.

When will it come into effect?

The effective date is announced as January 1, 2026.

Please note, however, that no final text has yet been published. The government is nevertheless considering retroactive application, taking into account the capital gains as of December 31, 2025, as soon as the law is published.

Do you have any doubts, concerns, or questions?

We are here to help you with the process!

Innovation in the Legal Sector

The Evolution of Mediation and the Strategic Role of Artificial Intelligence for Lawyers

Discover how innovation is transforming the legal profession by rethinking mediation and integrating artificial intelligence as a strategic lever for lawyers.

1. The transformation of the legal profession

The current legal landscape in the face of digitalization

The legal profession is undergoing a major transformation as a result of digitalization and technological innovation. The implementation of online platforms, electronic file management, and the use of specialized software have optimized the quality and speed of legal services.

Challenges faced by professionals

Legal professionals face several major challenges: quickly acquiring new digital skills, complying with personal data protection regulations, and ensuring the security of electronic exchanges.

2. Mediation reinvented through innovation

The evolution of conflict resolution practices

Mediation is undergoing a profound transformation thanks to technological advances. Online platforms provide a secure interface for remote sessions, enabling mediators to intervene effectively.

The benefits of the new technology

The integration of these innovations makes it possible to offer faster, more efficient, and more economical services. By reducing resolution times and facilitating remote intervention, these tools improve customer satisfaction.

3. Artificial intelligence as a strategic lever

Concrete applications of AI in legal practice

Document analysis tools automate the review of contracts or files. Automated legal research facilitates access to relevant case law. Some AI systems can predict the likely outcome of a dispute by analyzing previous decisions.

Integration of AI into case management

AI improves the efficiency of internal processes, facilitates the monitoring of case progress, and automates tasks such as billing. The use of chatbots ensures personalized support and improves the customer experience.

Ethical and regulatory issues

The transparency of algorithms, the protection of personal data, and liability in the event of errors are major challenges. Professionals must ensure strict compliance with ethical standards.

4. Conclusion

The integration of technological innovations represents a major opportunity for the legal sector. Professionals must take a proactive approach by investing in their training and integrating these technologies into their daily practice to offer better quality services.

Can working abroad create a permanent establishment?

The OECD provides a clarified framework for cross‑border work from a home or “other relevant location”.

Under what circumstances can an employee’s home office constitute a permanent establishment (PE) of the employer under Article 5 of tax treaties? In the absence of explicit provisions in tax treaties, states have adopted various solutions (interpretative agreements or administrative guidelines) often divergent, creating a risk of inconsistent interpretations and potentially double taxation.

In its 2025 update to the OECD Model Tax Convention Commentary, the OECD now explicitly addresses cases where an individual performs all or part of their work, for personal reasons, in an “other relevant location” situated in the other contracting state which is neither the enterprise’s premises nor those of another related enterprise (client, supplier, associated enterprise). This “other relevant location” can be the home, but also a secondary residence, a holiday rental, the home of a relative, etc.

They also explain why these places differ from “classic” sites: they are often under the individual’s control, not accessible to other persons of the enterprise, and more closely linked to the private sphere, making analysis more delicate.

The reasoning is mainly based on three steps:

1) 50% threshold (paragraphs 44.8 et seq. of the new OECD commentary on Article 5)

When the employee works 50% or less of their time from their home or this other relevant location over a twelve‑month period, the home office should not in principle constitute a permanent establishment of the employer.

2) The existence of a commercial reason (paragraphs 44.11 et seq.)

When the employee performs more than 50% of their working time from their home or from another relevant location, it is necessary to examine whether their presence in that state is justified by a commercial reason. Such a reason may notably be found when the employee’s physical presence in that state facilitates the exercise of the enterprise’s activity, particularly by enabling access to resources, infrastructure, or persons (such as clients, suppliers, or other partners) that are necessary for the exercise of that activity.

3) Nature of the activities carried out (paragraph 44.5)

Even if the two preceding conditions are met, a permanent establishment should not be recognized if the activities carried out at home are preparatory or auxiliary in accordance with Article 5(4) of the OECD Model.

Conclusion

The 2025 update to the OECD Commentary on Article 5 marks an important evolution in the analysis of permanent establishment risk in the context of cross‑border work and teleworking. The new paragraphs 44.1 to 44.21 introduce a more structured framework for assessing situations in which a home or “other relevant location” may constitute a fixed place of business of the enterprise.

At the same time, the update recalls that the existence of a permanent establishment remains subject to the general conditions of Article 5, in particular the permanence of the installation and the non‑preparatory or auxiliary nature of the activities carried out.

Overall, these developments aim to strengthen legal certainty and consistency in the interpretation of Article 5 in the face of new forms of work organization. Their practical application will however depend on how tax administrations and courts incorporate these guidelines into the interpretation of existing tax treaties.

No photos, no tax: municipalities reminded of their obligations

(Brussels Court of Appeal judgment of November 13, 2024)

Some Belgian municipalities have introduced a tax on fully and/or partially unoccupied buildings. This is notably the case for the municipalities of Meise, Ternat, Zemst, Wemmel and Vilvoorde, which have adopted a tax regulation applicable to their territory.

The presence within the municipal territory of fully or partially unoccupied buildings, as well as abandoned land, is likely, for these municipalities, to harm the attractiveness of the neighborhoods concerned, particularly when these properties are located along the public roadway, and to hinder both residential development and commercial and economic activities.

However, these taxes impose a considerable tax burden on certain taxpayers.

On November 13, 2024, the Brussels Court of Appeal forcefully recalled that these instruments, although pursuing a legitimate objective, can only take effect if they strictly comply with the formal requirements set out in the applicable regulations.

In the case that gave rise to this judgment, a building had been entered in a municipal register of unoccupied buildings. This registration led to the application of the corresponding municipal tax. The owner company contested this decision, arguing that the building was rented out under a registered lease and that the municipality had not carried out any serious factual investigation. Above all, it raised a fundamental irregularity: the administrative act establishing the vacancy did not include any photographic file, even though both the municipal regulation and a Flemish decree of July 10, 2009, expressly require such a document.

In this regard, the Court of Appeal recalls the applicable legal framework. The administrative act underlying an entry in the register of unoccupied buildings must include three inseparable elements: a numbered act, a descriptive report, and a photographic file intended to materially support the finding of vacancy. This photographic file constitutes a substantial formal requirement; its absence directly affects the validity of the act.

However, in this case, while the act was indeed numbered, it contained no photographs and did not even refer to such a file. The documents produced by the municipality (mere printouts from the population register) could not remedy this deficiency.

The legal consequence is clear: failing to comply with an essential formal condition, the administrative act is irregular and cannot serve as a valid basis for the registration of the building in the register of unoccupied buildings. This irregularity alone is sufficient to lead to the annulment of the tax, without the Court needing to examine the other arguments raised by the parties, in particular those relating to the actual occupation of the property.