The end of the "good father" and the beginning of the era of the speculator?
- Aeacus Lawyers
- Jul 17
- 3 min read
To date, the basic principle of Belgian tax law is that those who manage their assets responsibly do not pay tax on realized capital gains on assets such as shares, crypto assets, or currencies. Only speculative capital gains, arising from transactions outside the normal management of private assets, are taxable at 33% as miscellaneous income.
Initially, the government seemed to plan to abolish this distinction starting January 1, 2026, and bring all capital gains under a single, uniform 10% tax, regardless of their speculative nature. This proposal was eventually abandoned as the final stretch approached due to political pressure, particularly from Vooruit.
According to the final agreement, the distinction between normal and abnormal management will be maintained. Speculative crypto income will remain subject to 33% tax, while non-speculative capital gains will now be subject to the new 10% tax.
Below we provide a brief overview of what was initially proposed and what was ultimately retained in the final agreement.
The concept of a "good father"
The qualification as a "good father" means that the investor acts prudently and reasonably, without taking excessive risks or employing professional techniques. The assets must remain strictly private and separate from any professional activity. For example, those who purchase their crypto assets with their own funds, for the long term, and limited themselves to a small percentage of their total assets, could, in principle, benefit from this regime until now (as confirmed by the Advance Rulings Service).
Speculation, on the other hand, which is typically derived from short holding periods, higher trading frequency, leverage, or other aggressive strategies, is currently treated for tax purposes as miscellaneous income, taxable at a rate of 33%.
Jambon's original bill
The original draft texts on capital gains tax included a striking change. The explanatory memorandum explicitly confirmed that, from January 1, 2026, the new regulation will apply as a lex specialis : a special arrangement that takes precedence over the existing regime for speculative income. Moreover, one of the key provisions states that all capital gains on financial assets within the scope will be subject to the new 10% tax regime, even if they arise from speculative transactions.
Capital gains on financial assets falling within the scope of the new regime and realised from 1 January 2026 onwards will therefore fall solely within this regime, regardless of whether they arise from transactions within or outside the normal management of private assets, with the exception of the situation in which capital gains are realised within a professional context.
However, the investor was not granted this privilege. The simple harmonization of the capital gains tax, with a uniform rate of 10% for both speculative and non-speculative capital gains, failed to make it through the final negotiations. With the finishing line in sight, and under heavy pressure from Vooruit, it was decided to retain the existing 33% tax on speculative capital gains for transactions outside the normal management of private assets.
Final agreement
The final agreement stipulates that the current 33% tax rate on speculative capital gains, including those on cryptocurrencies, will be maintained. It also explicitly states that clarifications will be provided regarding how the speculative nature of crypto assets will be assessed for tax purposes. Meanwhile, both the text of the law and the explanatory memorandum have been leaked, revealing that the promised clarity remains rather limited.
The explanatory memorandum specifies that, when assessing the abnormal nature of transactions involving crypto assets, factors such as the percentage of the taxpayer's movable assets invested in crypto, the use of external financing, the use of automated software, and the number of transactions executed may be taken into account. It also explicitly states that for each realized capital gain, it must be assessed whether it falls within the normal management of private assets or is speculative in nature.
For the more experienced investor, these criteria are anything but new. They essentially represent a resumption of the parameters already used by the Advance Rulings Service, albeit again without additional clarification or concrete guidelines. Therefore, there is no real legal certainty. The status quo remains, and uncertainty for taxpayers persists.
Conclusion
What many crypto investors hoped for has once again proven too good to be true. A simple, uniform regulation with legal certainty unfortunately remains elusive. Despite earlier signals that greater clarity and simplicity would be sought, the tax treatment of crypto assets remains marked by exceptions, ambiguities, and varying regimes even under the final agreement. Legal certainty for crypto investors is thus unfortunately still lacking.
Christophe Romero Senne Verholle
