Rulingdienst begrenst gebruik warrants en opties op BEVEK-aandelen: Invoering van de “20%-grens”

In recent years, several financial institutions obtained rulings from the Ruling Commission with regard to the tax treatment of option plans on SICAV shares and listed warrant plans. This kind of product became popular because they allowed employers to convert certain existing salary components (e.g. the yearly bonus) into options on SICAV shares and warrants, which are favourably treated from a tax and social security point of view.

The Ruling Commission now seems to have put a limit on the use of this kind of product for services rendered as of 1 January 2018 by using the concept of “disproportion”.

In most rulings it was specified that the implementation of such plans would result in an improper use if the grant of the options/warrants was “disproportionate” in comparison to the salary which is usually paid.

In its newsletter of 30 January 2018, the Ruling Commission clarified certain ‘decisions of particular importance’ which contain a concrete interpretation of the concept of “disproportionate”.

In order for the use of options on SICAV shares or warrants not to be disproportionate, employees may only be granted an amount not exceeding 20% of the sum of:

• the monthly gross salary, multiplied by 12.92 (thus including vacation pay, but without taking into account the benefits in kind);
• the thirteenth month; and
• the gross variable salary

in the form of options on SICAVs or warrants.

Also, self-employed directors may only be granted an amount not exceeding 20% of the sum of:

• the fixed gross yearly salary (subject to withholding tax and social contributions for self-employed individuals, and this without taking into account the benefits in kind); and
• the yearly gross variable salary

in the form of options on SICAVs or warrants.

In both cases, the real/economic value of the granted options on SICAV shares or warrants has to be used in order to calculate the 20% limit.

The Ruling Commission indicates that this 20% limit will only apply to option and warrant plans concerning services rendered as of 1 January 2018.

> Action point

For services rendered as of 1 January 2018 the abovementioned “20% limit” has to be taken into account when a company grants options on SICAV shares or warrants to its employees and/or directors.