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Belgian tax authorities issued a circular letter clarifying their position regarding the applicable statute of limitations for withholding tax reclaims, following recent case law from Belgian highest courts.
Context
Following the recent case law and ongoing discussions (See our previous Tax Alert) concerning the statute of limitations for withholding tax (“WHT”) refund claims and judicial actions, the Belgian tax authorities have issued a Circular Letter (2025/C/56) on September 10, 2025. This Circular Letter provides important clarifications regarding the position of the tax authorities.
Key clarifications
In spite of the uncertainty created in the case law, the Belgian tax authorities reaffirmed their previous position and provided clarifications on the following items:
- An administrative reclaim must be filed prior to initiating any legal proceedings to recover undue WHT.
The tax authorities emphasize that Article 368 ITC92 is included in Chapter VII, Section 1 "Administrative Recourse" of the Income Tax Code. According to the administration, contrary to the interpretation of the Court of Cassation and the Constitutional Court, these provisions refer solely to the administrative refund procedure.
The administration thus reaffirms that any request for the refund of movable withholding tax must necessarily first be submitted following the administrative procedure.
This position was also supported by the Advocate General at the Court of Cassation, in accordance with its previous case law.
- Legal proceedings initiated after the 5-year period will be considered admissible provided that an administrative refund procedure was introduced during said 5-year period.
The tax authorities hereby reaffirm their position according to which the 5-year statute of limitations provided under Article 368 ITC92 only applies to the filing of administrative reclaim procedures for unduly levied WHT in respect of movable income.
Where an administrative reclaim procedure was timely filed, the tax authorities also state that they will not invoke the non-admissibility of any legal proceeding initiated after the 5-year period based on the latest case law from the Court of Cassation and the Constitutional Court
On the other hand, if taxpayers initiate legal proceeding without having filed an administrative reclaim first, the tax authorities warned that they will invoke the non-admissibility of those legal proceedings before court, irrespective of whether they are initiated during or after the 5-year period.
Takeaways
This Circular Letter should enable foreign investors to continue relying on their previous procedures for the filing of WHT reclaims in Belgium. In particular, investors should ensure that any administrative reclaims are filed within five years as from January 1st of the year during which the tax was levied. Moreover, investors should ensure that an administrative claim was filed prior to initiating any legal proceedings.
Whereas the Circular Letter is a positive development, investors should continue to monitor any other updates going forward. In this respect, an interpretative law would be welcome to further strengthen the position of the tax authorities.
How EY can assist
EY can assist with identifying reclaim opportunities in respect of Belgian-sourced income. EY is also available to assist with the preparation and submission of administrative claims. Please reach out for tailored support regarding your specific tax situation.