Fee forms for fees paid to doctors’ associations: (finally) some guidelines

Fees for medical services provided by doctors in hospitals are generally collected centrally by the hospital and subsequently paid out to the individual doctors. In practice, it often happens that the doctors unite themselves in a so-called ‘pool’, being an association or partnership, without legal personality, that collects the fees from the hospital and subsequently transfers those fees to the doctors on the basis of a certain allocation key.

As a taxpayer subject to legal entities tax, the hospital is in principle obliged to report these fees on an annual basis on individual fee forms (281.50), thus revealing the amount and the recipient of the said fees to the tax authorities. Should the hospital refrain from doing so, it may expose itself to the so-called ‘secret commissions’ tax’, being a separate tax that amounts to 103% of the incorrectly or non-reported fees.

Fee form for the pool or for the individual doctors?

Generally speaking, the hospitals have no insight into the pool’s internal allocation key, often resulting in the pool drawing up only a single fee form for the full amount, naming the pool as the beneficiary. This practice appeared to find support in a specific position of the tax authorities from 2012 regarding fees that were paid by the National Institute for Health and Disability Insurance (‘RIZIV’) to local consultation committee (‘lokale overlegcomités’ or ‘LOK’). In that specific situation, the tax authorities accepted that only one fee form is drafted in the name of the person responsible for the local consultation committee.

This practice, however, was condemned by the Special Tax Squad. This is illustrated by a recent case that was published in the press with respect to the hospital ‘Ziekenhuis Oost-Limburg’, which was exposed to a ‘monster fine’ in the amount of 103% of the fees paid.

Given the lack of clarity for the hospitals and their advisors in this matter, a position was issued by the medical interest group ‘Zorgnet-Icura’ on 1 June 2017, urging its members to prepare the tax forms for calendar year 2016 in the name of the pool for the full amount, and to identify the underlying members of the pool in the comment area of the tax form as ultimate beneficiaries.

The deadlock for the sector came at a new height when in 2017, the Minister of Finance, also distanced himself from the practice one of drawing up a single fee form in the name of the pool,. In a reply to a Parliamentary Question, the Minister indeed confirmed that in principle a fee form must be drawn up in the name of each member of the pool, stating his or her share in the revenue.

Guidelines through the FPS Public Health

All of this led to consultation between the FPS Finance and the FPS Public Health, which very recently resulted in a letter from the FPS Public Health to the hospitals. In summary, this letter clarifies that it is no longer possible to draw up a single fee form in the name of the pool, but as from now individual fee forms need to be drafted for each individual member, for his or her personal share in the revenue.

This does, however, require that the hospital has insight on the internal allocation key of the pool on the basis of which the individual members are remunerated, which in practice it often lacks. If the hospital is not timely informed about this internal allocation, the hospital needs to draw up individual fee forms on the basis of ‘RIZIV/VI’ data and not on the basis of the payments effectively made by the pool to the individual care providers. The latter is in no way in the interest of the individual doctors, as this will lead to discrepancies between the amounts reported in the individual fee forms and the amounts reported by the individual doctors in their tax returns.

Irrespective of the binding nature of this letter (which originates from the FPS Public Health), it is also explicitly stated that the statement does not contain take a position or has an impact on current disputes. The statement would therefore only provide guidance with respect to tax forms as of calendar year 2017, which need to be filed ultimately by the end of June 2018.

Knot left to unravel

Those who were anticipating a long-awaited end to the questions pertaining to the fee forms for doctors’ pools remain dissatisfied. Not only is there no legal certainly for hospitals that have in the past, in good faith, drawn up (global) fee forms, also for the future no clear solution is offered for the practical difficulties that hospitals face in this respect.

Not only hospitals are confronted with issues with respect to this reporting obligation. Also taxpayers subject to corporate income tax or legal entities tax are faced with a similar problem, when in need to file fee forms for services provided by, amongst others, de facto associations. Also for these taxpayers the guidelines do not provide a solution.

Should you have any further questions regarding your fee forms or you wish to obtain a better view of the impact on your individual situation, you can always contact Mythra Tax Lawyers.