1° isolated or exceptional operations;

2° operations consisting in the investment of funds collected in the exercise of their statutory mission;

3° operations that constitute an activity involving only incidental industrial, commercial, or agricultural operations or not involving industrial or commercial methods.”

Read: Commentary on Art. 182, IRC 92 (updated).

In order to ensure as much legal certainty as possible for the reader, we have reproduced below the (updated) administrative commentary on this article, which is the basis for the taxation (or rather the lack thereof) of NFTs and other movable assets in the hands of non-market legal persons.

isolated or exceptional operations

This means operations that are not repeated often enough to constitute an “occupation”.

Operations that consist in the investment of funds collected in the exercise of their statutory mission

This is to be understood as the operations of movable or immovable investments (including the rental of real estate in the context of the social activity) which would be considered part of the normal management of a private asset (see the commentary on art. 23 and art. 90, CIR 92) if they were carried out by natural persons or associations, etc., which do not have legal personality.

We thus refer the reader to our developments above regarding the criteria retained by the administration to preserve the character of normal management of private assets.

Operations that constitute an activity that only incidentally involves industrial, commercial or agricultural operations or does not involve industrial or commercial methods

The operations authorized to be subject to the IPM must include:

• or the simple exercise, in accordance with the rules imposed by law or by the articles of association, of an administrative activity or a mission of general interest not essentially involving industrial, commercial or agricultural operations or not implementing industrial or commercial methods;
• or profit-making operations that are only incidental to the overall social activities.

This provision extends, in fact, to NPOs and other legal entities that do not pursue a profit-making purpose and carry out activities that, by their very nature, are not considered to be profit-making because they fulfill a mission of general interest (activities of a purely philanthropic, charitable, spiritual, religious or cultural nature). Therefore, there is no reason to subject to ISoc the ASBLs and other legal entities mentioned above that engage incidentally in operations of a profit-making nature, with a view to the realization of their disinterested and socially recommendable purpose.

In fact, the operations must meet two conditions in order not to be considered as profit-making, namely:

• or do not use industrial or commercial methods;
• or be of an accessory nature.

These two conditions, to be assessed annually, must be considered separately and can be defined as follows

ACTIVITY NOT INVOLVING INDUSTRIAL OR COMMERCIAL METHODS

Industrial or commercial methods” are those which, in a given sector, are usually used by industrial or commercial enterprises in that sector.

Naturally, it is necessary to assess whether, taking into account the facts of each case, an NPO or other legal person not pursuing a profit-making objective applies these industrial or commercial methods.

In this case, the following assessment criteria can be considered:

• the way the advertising is done;
• the sales and distribution methods used;
• the nature of the income obtained;
• the nature of the clientele;
• the staff occupied;
• how operations are funded.

However, it should be noted:

1. that the above criteria are provided as examples only;
2. that these criteria must not be assessed in isolation but as a whole and that one of them alone cannot therefore be decisive;
3. that the whole of the activities of the legal being must be taken into consideration;
4. that in some sectors not all of the above criteria are applicable, but only those relevant to the sector in question should be used.

ACTIVITY INVOLVING ONLY INCIDENTAL INDUSTRIAL, COMMERCIAL OR AGRICULTURAL OPERATIONS

The ancillary nature of the activity carried out must be assessed in the light of all the disinterested social activity of the legal person in question.

This condition is to be examined on a case-by-case basis (i.e. by legal entity), taking into account the specificities of each of them.

The following criteria can be used to determine whether or not an activity is incidental: the correlation criterion and the quantitative criterion.

a) Correlation criterion

This criterion is valid in cases where the activity is a necessary corollary of the principal disinterested activity, i.e. when the latter is made impossible without the exercise of the activity in question. The latter is then simply a consequence of the disinterested activity (social, charitable, cultural, etc.) in the sense that it is carried out only in conjunction with the latter, i.e. at the same time and in the same place.

Thus, for example, the publishing of publications to publicize the social, cultural, etc., objectives of a legal entity may be considered as incidental.

In principle, it can also be accepted that the correlation criterion is met when the industrial, commercial or agricultural activity is developed within the framework of a therapy and insofar as it constitutes one of its essential elements.

b) Quantitative criterion

As an example, we can take into consideration as quantitative criteria:

• the number of people employed;
• the importance of the material means implemented.

With regard to the criterion of the number of persons employed, it is necessary to compare, on the one hand, the number of persons assigned to the professional activity carried out (1) and, on the other hand, the number of persons who take part in the disinterested activity.

(1) However, persons who are being cared for by the legal entity in the context of therapy shall not be taken into consideration.

In order to determine the number of persons who are assigned, in the ASBL or in another legal person not pursuing a profit-making aim, on the one hand to the non-profit activity and, on the other hand to the professional activity, it is necessary to take into account both the effective members of the ASBL or of the other legal person and the employed personnel, it being understood that the persons (effective members or not) who work only part-time can be counted only pro parte.

In order to use this quantitative criterion, it is important to weight the number of staff used in the different sectors and the implementation of machines that can greatly reduce the number of staff required to carry out a given activity.

In order to assess the accessory nature of the professional activity, it is therefore necessary to start from the material means used, i.e. the comparison must be made between, on the one hand, the importance of the material means used in the professional activity (2) and, on the other hand, the importance of the means used in the disinterested activity.

(2) However, material resources used in the course of therapy for persons under the care of the legal entity are not to be taken into consideration (see No. 182/15)

If this comparison shows that the size of the resources used in the professional activity is significantly greater than the size of the resources used in the non-profit activity, the ISoc is in principle applicable.

It should be noted that the administration should not rule out the use of other criteria than the two described above.

Three social vehicles with different objectives can be distinguished here:

THE ASBL

The ASBL can be defined as “a group of people who come together around a social object in favor of which they will pool resources that they will allocate to the realization of actions intended for a target public and aiming to accomplish said object” (Ch. BOERAEVE, R. ROSOUX and A. KEEPEN, L’ASBL pour TOUS, Brussels, Ed. Corporate Copyright, 2004, p. 76. KEEPEN, L’ASBL pour TOUS, Brussels, Ed. Corporate Copyright, 2004, p. 76.), the ASBL is the social vehicle best suited to a community of individuals who are looking for a structure with very low constitution costs, flexible and democratic. It is currently the only organization that can be constituted by private deed and does not require a notary.

THE AISBL

With the same definition, we would simply add that the AISBL is perfectly applicable to associations whose goals, activities or members are international. If its operating rules are even more flexible than those applying to ASBLs, the AISBL necessarily requires for its constitution an authentic act and, in addition, a recognition by Royal Decree.

The FOUNDATION

With no members and therefore no general assembly, and simply the result of the allocation of a patrimony in front of a notary for the realization of a disinterested goal, the FOUNDATION is undoubtedly the most “free” of the three associations, even if it still requires an authenticated act.

However, the necessary control of the directors is subject to special measures.

It should be noted that it can now very well be constituted by will and thus receive the legacies of the deceased founder.

Read: Guide ASBL, AISBL et fondations de Christophe Boeraeve, Robert Dasnois, Véronique Mélotte.

The ASBL/AISBL or PRIVATE OR PUBLIC FOUNDATION will often be chosen to ensure the promotion of a collection of works of art or of an artist.

See: https://fondationfolon.be/.

These legal entities of the non-market can also be used for the organization of artistic events and the development and the diffusion of a collection of works of art. They can benefit from grants and subsidies and from the regime of volunteers.

Read: The Francophone Platform of Volunteering – Informing, accompanying and equipping for quality volunteering.

The collector can therefore bring works of art to the legal entity (donation by authentic act or manual gift/indirect donation) or bequeath them by will. A procedure of authorization by the Minister of Justice has been put in place for all donations and gifts.