By Jonathan Himpe, Attorney at Law, Belgium (*)
In a decision handed down on 7 February 2017, the Court of First Instance of East Flanders (Ghent Division) has ruled that a one-time fee received by a professional football player for the temporary exploitation of his image rights in a professional context is taxable as professional income at the ordinary progressive tax rates up to 50% and not as income from movable property at the more favourable separate rate of 15% (assessment year 2008 – currently 30%).
More concretely, a Croatian national and tax resident had concluded an employment contract with Belgian first division team K.S.C. Lokeren for the period from September 2006 to June 2010. In addition, in July 2007, he concluded a separate agreement with a third party in relation to the exploitation of his image rights for a period of 3 years. For the latter agreement, the player received a one-time fee in 2007.
Since the player did not file a non-resident tax return in relation to this image rights fee, derived from a Belgian source, an ex officio
tax assessment was imposed by the Belgian tax authorities on the basis of individual fee forms filed with the tax authorities by the counterparty of the image rights contract.
In his defence, the player argued
- that only Croatia was allowed to tax the image rights fee on the basis of the double tax treaty between Belgium and Croatia; and
- that, if Belgium were authorised to tax, the image rights fee should be qualified as income from movable property and not as professional income under Belgian internal tax legislation.
As regards the authority to tax, the Court concluded that the image rights fee is taxable in Belgium under Article 14 (“Independent Personal Services
”) of the double tax treaty, since the football premises of K.S.C. Lokeren were to be considered as a so-called “fixed base” of the player in Belgium to which the image rights fee could be attributed.
As regards the internal qualification, the Court emphasized that, in the case at hand, the image rights of the player were by agreement explicitly linked and limited to the professional activity of the player
. Image rights that do not relate to the professional activity of the player were not covered by the relevant agreement. Moreover, the agreement was made dependent on the employment contract between the player and K.S.C. Lokeren and the third party would be entitled to compensation in the event of early termination of the employment contract.
Regardless of the terms of the particular image rights agreement, the Court also added that such image rights only have a certain value because of the player’s professional activity. The value of his image rights is the result of his success as a professional football player. Neither the fact that the fee was being paid by a third party instead of by the player’s employer, nor the fact that the fee related to the transfer and not the use of the player’s image rights was deemed relevant by the Court.
In view of the foregoing, the Court is of the opinion that the transfer of the player’s image rights forms part of his professional activity as a football player for K.S.C. Lokeren and, therefore, must be re-qualified from movable income to professional income under Article 37 of the BITC92.
Although this decision might be criticized from a Belgian tax point of view, it clearly demonstrates that the object and wording of an image rights agreement must be well-considered and checked, not only from a private law perspective, but also from a tax law perspective.
(*) Jonathan Himpe is a qualified lawyer in Belgium. He is also a researcher and teaching assistant at the “Law, Tax & Business Unit” of Hasselt University, Belgium.