Claiming Back Withholding Taxes: Tax Claim Or Not?

Taxpayers can recover withholding taxes (WHT) that were unduly withheld by the debtor, for example, on Belgian dividends, interest, or where a payroll tax exemption was incorrectly applied. Until recently, the prevailing view was that filing a claim with the tax authorities within five years (or four years for payroll tax exemptions) was sufficient to safeguard the claim (Article 368 and 368/1 BITC92).

However, recent case law from the Belgian Constitutional Court and Supreme Court clarifies that these Articles provide for a statute of limitations to file a legal proceeding, and not administrative proceeding with the tax authorities. In the circular letter 2025/C/56, the tax authorities now reconfirm their position, setting aside the case law from the Constitutional Court.

Claiming back WHT: statute of limitations

Withholding taxes (WHT) have to be paid spontaneously to the Treasury. If it appears that the withholding was erroneous, one can claim back the WHT (like unduly withheld WHT on Belgian dividends or interest payments, erroneous application of a payroll tax exemption etc).

The claim must be filed within five years, starting from 1 January of the assessment year (Article 368 of the BITC92). In case a payroll tax exemption would be applied, this time period is limited to four years (Article 368/1 BITC92).

Traditionally, it was understood that Articles 368 and 368/1 BITC92 imposed a deadline for filing a tax claim with the tax authorities to recover the withholding tax. In other words, if the claim was filed before expiration of the periods imposed by Articles 368 and 368/1 BITC92, the claim will be handled and could result in the repayment of the unduly withheld WHT, even if such decision would be taken after expiration of the aforementioned periods.

Constitutional Court and Supreme Court: no statute of limitations to file an administrative claim, but a legal proceeding

In a landmark judgment dated 23 December 2023, the Belgian Supreme Court ruled that Article 368 BITC92 does not impose a mandatory administrative procedure. Taxpayers can bring their claim directly before the courts.

The Constitutional Court confirmed this view in a 13 March 2025 ruling (judgment no. 43/2025), stating that Article 368 BITC92 provides for a statute of limitations to file a legal proceeding. The Court explicitly stated that: "Consequently, contrary to what the referring court claims, Article 368 of the 1992 Income Tax Code does not provide for a time limit to lodge an appeal with the tax administration, but rather for a five-year limitation period for bringing legal proceedings".

This ruling was inconsistent with the way in which this provision had consistently been applied. Moreover, a tax claim that was filed does not automatically suspend or interrupts the statute of limitations.

Position of the tax authorities

The tax authorities have now taken a stance following the case law of the Supreme Court and the Constitutional Court. In the circular letter 2025/C/56 dated 10 September 2025, the tax authorities reaffirmed their interpretation.

Indeed, the tax authorities maintain the position that the Articles 368 and 368/1 BITC92 indeed provide for a mandatory administrative proceeding, which must be followed before a legal proceeding can be filed.

The case law of the Supreme Court and the Constitutional Court has thus been disregarded. The tax authorities take the position that these rulings are not compliant with the law.

If one files a tax claim within the periods imposed by Article 368 and 368/1 BITC92, the tax authorities will investigate the claim and render a decision. They will not challenge the admissibility of the claim. However, if one would lodge a legal proceeding directly (without filing a tax claim), the tax authorities will challenge the admissibility of the claim.

What to do?

Although the tax authorities' position may seem pragmatic, it raises serious legal concerns. Courts may still independently raise the issue of time-barred claims, potentially rendering your claim inadmissible, even if you followed the tax authorities' guidance.

Taxpayers having filed a tax claim to claim back withholding taxes should evaluate whether additional steps need to be taken in order to safeguard their rights and their claim. If no steps are taken, there is a concrete risk that the claim would in the end be declared inadmissible because of being time-barred.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.