Belgian court accepts normal private asset management despite short holding period and high capital gain.
- Aeacus Lawyers
- 3 days ago
- 9 min read
In brief On 2 March 2026, the Court of First Instance of Walloon Brabant held that a capital gain of approximately EUR 1.7 million on shares was not taxable as miscellaneous income. The taxpayer had invested approximately USD 3.2 million in shares in early 2019 and sold them around three months later for approximately USD 5.2 million. Despite the short holding period, the substantial capital gain and the taxpayer’s professional expertise in the energy sector, the court found that the tax authorities had not sufficiently proven “abnormal management of private assets”. Source: Court of First Instance of Walloon Brabant, 14th chamber, 2 March 2026, case no. 24/804/A. |
1. Facts of the case
During a tax audit, the tax authorities examined the taxpayer’s foreign accounts for the period 2018 to 2019. In doing so, they discovered a series of transactions in energy stocks.
In early 2019, the taxpayer sold shares in Cheniere Energy and Tellurian. With part of the proceeds, he then purchased approximately 70,000 shares in the US energy company Anadarko Petroleum for approximately USD 3.2 million.
A few months later, on 6 May 2019, he sold all the shares for approximately USD 5.2 million. The realised capital gain amounted to approximately USD 2 million, or around EUR 1.7 million.
The tax authorities considered the transaction to be speculative. In their view, the short holding period, the size of the investment, the taxpayer’s professional expertise and the capital gain realised were among the elements indicating abnormal management of private assets.
2. Why did the tax authorities consider this to be abnormal management of private assets?
According to the tax authorities, the transaction fell outside the scope of normal management of private assets within the meaning of Article 90, first paragraph, 9° of the Belgian Income Tax Code 1992. They therefore sought to tax the realised capital gain as miscellaneous income at the separate rate of 33%.
In the tax authorities’ view, several elements pointed towards speculation, including:
the short holding period of approximately three months;
the substantial investment of more than USD 3 million;
the high realised capital gain of approximately EUR 1.7 million;
the taxpayer’s professional experience in the energy sector;
previous active trading in energy stocks;
the concentration of a significant part of the portfolio in a single stock.
In addition, the tax authorities referred to earlier transactions in Cheniere and Tellurian shares, and even to a previous insider trading conviction in the United States.
According to the tax authorities, a normally prudent investor would not invest such a large part of his assets in a single stock. Notably, the tax authorities also referred to information obtained from artificial intelligence to support the allegedly risky nature of the investment.
For the avoidance of doubt, the tax authorities did not take the position that the income constituted professional income.
3. How did the court assess “normal management of private assets”?
The central issue in the dispute was whether the realised capital gain still fell within the scope of “normal management of private assets” within the meaning of Article 90, first paragraph, 9° of the Belgian Income Tax Code 1992, or whether it was speculative in nature.
The court emphasised that this assessment must always be made in concreto, taking into account all the circumstances of the case. In doing so, it referred, among others, to case law of the Court of Cassation and the Ghent Court of Appeal.
The Court of First Instance of Walloon Brabant began its analysis by noting that the Belgian Income Tax Code 1992 does not contain a statutory definition of the concept of “speculation”. It therefore relied on the traditional case law of the Court of Cassation concerning normal management of private assets and speculative transactions.
Referring to the judgments of the Court of Cassation of 18 May 1977 and 6 May 1988, the court reiterated that a transaction may be speculative where it involves substantial risks and the possibility of both a significant gain and a serious loss as a result of market movements or price fluctuations.
The court also referred to the judgment of the Constitutional Court of 24 February 2022, no. 31/2022, which confirmed that the exception for “normal management of private assets” must be interpreted strictly.
In addition, the court referred to a judgment of the Ghent Court of Appeal of 22 March 2022, which held that the tax authorities must prove that a transaction falls outside the normal management of private assets. According to that judgment, transactions may still fall within normal private asset management where they are aimed at preserving or increasing wealth without excessive risks or professional techniques.
The court also referred extensively to legal doctrine, including Marc Marlière, Christine Schotte and Professor Kirkpatrick. It emphasised that one single element will generally not be sufficient to establish speculation.
According to the court, the following elements may be relevant when making the assessment:
the speed of the purchase and sale;
the extent of the risk;
the expectation of a significant profit;
the taxpayer’s experience;
the repetition of transactions;
the use of loans;
the techniques used.
It is also noteworthy that the court reiterated that transactions in listed shares have traditionally benefited from a presumption of normal private asset management. In this respect, it referred to the preparatory works of the Law of 20 November 1962 and to Com.ITC 90/8.
4. Why did the taxpayer win?
Although the court acknowledged that certain elements could point towards speculation, it ultimately found that the tax authorities had not provided sufficient evidence.
The court accepted that the short holding period was a relevant factor, but clearly held that this element alone was not sufficient to establish speculation.
The court attached importance, among other things, to the fact that the investment concerned listed shares and that the taxpayer had carried out a substantive economic analysis. According to the judgment, his decision was based on:
analysis of the share price;
analysis of the oil price;
analysis of quarterly reports;
knowledge of the cyclical nature of the energy sector.
The court accepted that the taxpayer could reasonably consider the Anadarko share to be undervalued.
It also mattered that the taxpayer still held a significant cash position and managed his wealth actively, but not recklessly. In addition, he did not use borrowed funds.
Perhaps the most important passage of the judgment is that the court explicitly confirmed that private wealth may be managed in a dynamic manner.
In other words, private wealth may be managed actively and intelligently without automatically becoming speculative.
The court therefore concluded that the tax authorities had not proven abnormal management of private assets. The assessment was annulled in full.
5. What does this mean for crypto and other financial assets?
Although this judgment concerns listed shares and not crypto-assets, it contains several principles that are also relevant for crypto investors.
The elements relied on by the tax authorities in this case, such as a short holding period, significant capital gains, active trading and specialised market knowledge, also frequently arise in discussions on the tax treatment of crypto-assets.
Crypto obviously differs from traditional shares in certain respects. Nevertheless, both this judgment and the preparatory works of the new capital gains tax indicate that crypto-assets should, in principle, not be treated differently from other financial assets.
During the parliamentary works, Minister of Finance Jan Jambon expressly stated that crypto-assets are treated in the same way as all other financial assets, without distinction. The Minister also indicated that taxation on the basis of abnormal management or speculation is exceptional in the context of the purchase and sale of crypto-assets, and that it is a combination of factors, not a single factor, that may lead to taxation at 33%. In this respect, the Minister stated that “the vast majority of investors will fall under the taxation of the capital gains tax of Article 90, first paragraph, 9° BITC 1992” (Parl. Doc. Chamber 2025-26, no. 56-1244/004, Report on behalf of the Finance and Budget Committee by B. Piedboeuf, first reading, p. 195).
The Minister further clarified that this approach also applies to speculative capital gains on other financial products.
All of this appears to confirm that:
high capital gains;
quick sales;
active market monitoring;
frequent transactions;
specialised knowledge;
are not, in themselves, sufficient to automatically conclude that there is taxable speculation, including in relation to crypto-assets.
6. The principle of equality: shares and crypto
This judgment is also relevant from the perspective of the constitutional principle of equality.
Articles 10 and 11 of the Belgian Constitution provide that comparable situations must, in principle, be treated in a comparable manner, unless there is an objective and reasonable justification for different treatment.
Where concentrated positions, short holding periods, active switching between assets and substantial capital gains in listed shares may still be considered normal management of private assets, the question at least arises why comparable behaviour in relation to crypto-assets should automatically be qualified as speculative.
That question becomes even more relevant now that the Minister of Finance has expressly stated that crypto-assets must be treated “without distinction” in the same way as other financial assets (Parl. Doc. Chamber 2024-25, DOC 56-0909/001, p. 33).
In that context, the Minister also referred to European regulation, which, according to him, provides for “an important regulatory alignment between regular financial instruments and crypto-assets” (Parl. Doc. Chamber 2024-25, DOC 56-0909/001, p. 33).
This does not mean, of course, that crypto can never be taxable as miscellaneous income or professional income. Elements such as systematic use of leverage, a professional organisation or a very high transaction frequency may still contribute to a qualification as speculative or professional.
However, an approach under which crypto-assets would automatically be treated more strictly than traditional financial assets merely because of their nature appears difficult to reconcile with both the preparatory works and the principle of equality.
7. Case law versus the Service for Advance Decisions
This judgment once again illustrates that case law in matters concerning speculation and normal management of private assets often takes a more nuanced and pragmatic approach than the practice of the Service for Advance Decisions, especially in files relating to crypto-assets.
In practice, the conditions under which the Service for Advance Decisions is prepared to grant a positive ruling are often applied very cautiously. In particular, in cases involving active crypto portfolios, shorter holding periods or higher realised capital gains, obtaining advance tax certainty may prove difficult.
However, this does not mean that such transactions are automatically speculative or taxable.
In this case too, several elements were present that are often considered problematic in ruling files: a relatively short holding period, active transactions, substantial capital gains, specialised market knowledge and a concentrated position in a single asset. Nevertheless, the court ultimately held that the tax authorities had not sufficiently proven abnormal management of private assets.
The judgment therefore confirms that the final assessment always remains a global analysis of the facts, in which no single criterion is automatically decisive.
8. Conclusion
The judgment of the Court of First Instance of Walloon Brabant of 2 March 2026 is an important and welcome decision in the debate on speculation and normal management of private assets.
The court clearly distances itself from an overly simplistic approach under which short holding periods, high capital gains or active market monitoring would automatically be considered speculative. Instead, it emphasises that a global and concrete analysis of the facts remains necessary.
It is also noteworthy that the court clearly takes into account the economic reality of investments and financial markets. The judgment expressly recognises that private wealth may be managed dynamically, and that a well-informed investor does not automatically act speculatively merely because he possesses market knowledge or takes advantage of opportunities.
This judgment therefore also provides an important counterweight to a tendency by the tax authorities to qualify certain investment files too readily as “abnormal management”.
Although the judgment concerns listed shares, it also contains relevant principles for crypto investors. The court confirms that:
no single criterion is automatically decisive;
a short holding period is not sufficient in itself;
high capital gains are not automatically speculative;
the assessment must always be made on the basis of the full factual context.
Combined with the parliamentary works on crypto-assets, this judgment therefore appears to provide an additional indication that crypto investments must also be assessed in a nuanced and legally consistent manner.
At the same time, one should avoid drawing overly broad conclusions from this judgment. For the time being, it is only one judgment of the Court of First Instance of Walloon Brabant. Based on the information requested by Aeacus Lawyers, no appeal has yet been lodged against the judgment.
It is also important to emphasise that such a decision is not legally binding in other cases or before other courts. It therefore remains to be seen to what extent other courts and courts of appeal will follow this approach. Nevertheless, the judgment is at least an important and positive signal that case law allows room for a more nuanced and economically realistic assessment of investment transactions.
This is particularly relevant in light of the upcoming DAC8 reporting obligations and the increasing use of data mining by the tax administration, as a result of which audits relating to crypto-assets are likely to increase significantly in the coming years. In that context, this judgment provides an additional and relevant argument for taxpayers faced with discussions about alleged speculation or abnormal management of private assets.
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