Bring Your Own Device | Belgian ruling committee considers tax treatment of reimbursements

The trend of “BYOD” (Bring Your Own Device) is an IT-policy that encourage employees to use their own devices to access and exchange corporate systems and data. With the consumerisation of mobility, many Belgian companies have recently begun allowing their employees the use of their own smart phones, tablets, and other personal electronic devices with an indemnity for business use (which has the advantage of flexibility and the employee's choice of devices, together with a lowering of operational costs).

Although under Belgian law there is no specific obligation in the legislation or in case law for the employer to reimburse the cost of a personal device used for work purposes, the general thinking is that an employer is indeed required to reimburse expenses incurred when fulfilling the employment contract. The cost of use may be reimbursed on the basis of actual expenses incurred or alternatively by a lump sum. The financial compensation for the use of the personal device may, under certain conditions, be considered as an "own cost to the employer," implying that no tax or social security are due on that amount.

The Belgian ruling committee admitted two parameters as justification for determining the amount of the financial contribution, including the acquisition price of the device and the (normal) professional duration of use. In several recent decisions, the ruling committee has accepted a professional use of approximately 80% and a duration of use from 2 to 3 years.

While there are many benefits to the BYOD trend, it also increases cybersecurity risks and can create legal concerns for companies. In addition to these concerns, companies must also consider how they are going to comply with their legal and regulatory obligations. They will have to proactively manage their BYOD policies and consider their employees’ privacy interests.