In review: the tax courts and tribunals in Belgium

All questions

The courts and tribunals

i Petition before the tribunal

If the taxpayer is not satisfied with the tax director's decision, it may file a petition before the court of first instance (the tribunal) within three months and three days of the decision being sent. The petition must address the validity of the tax bill and not the validity of the director's decision.⁴³ The director's decision is irrevocable if the taxpayer does not file a petition against it.⁴⁴

If the tax director fails to render his decision within six months of the filing of the complaint (nine months in the absence of a tax return filed in a timely manner or assimilated circumstances), the taxpayer may bring its case before the tribunal.

If the director annuls or rescinds the tax for any reason, a petition aiming at a revision of the reasons for the annulment or rescission is not admissible; the only purpose of a petition is the annulment or rescission of the tax.⁴⁵

A tax petition is not admitted if the administrative procedure has not been exhausted when such a procedure is organised by law.⁴⁶ When the law does not provide for any preliminary administrative review, the taxpayer may submit its case directly to the tribunal.⁴⁷ For example, if the taxpayer fears the threat of an illegal assessment, it may protest to the tribunal, and request urgent and preliminary measures to avoid further damage.

Tax cases are handled by independent judges specialising in tax matters.⁴⁸ Ordinarily, tax cases are submitted to a chamber of one judge. Only in very specific circumstances may a case call for a chamber of three judges.

In general, the Treasury is represented by the tax director who decided on the complaint, or their delegate. In specific circumstances, the Treasury appoints attorneys-at-law, which may mean additional costs for the unsuccessful taxpayer (see Section VI).

The parties usually submit a schedule to the court stating the date on which they will file their briefs of arguments, and request a date for the oral submissions. Because a number of tax courts are under-resourced, hearings may be severely delayed.

The ordinary rules allow the taxpayer to present new claims in its brief of arguments, provided that they are supported by the facts stated in the initial petition. If the taxpayer has extensively described the facts in its petition, it may use them as the basis for grievances that were not submitted at the time of filing the original petition but that have since become apparent to the taxpayer on reviewing the tax authorities' arguments and supporting documents.

The tribunal decides on the merits of the case, having regard to the formal and substantive aspects of the assessment. Because tax law is a matter of public policy, the tribunal must decide not only on the basis of the grounds alleged by the parties, but also on the grounds that it finds relevant, provided that it invites the parties to discuss those grounds.⁴⁹ The tribunal is not bound by the brief of arguments of the parties, but it cannot grant a party more than has been claimed.

The tribunal's decision may be contested before the court of appeals. Appeals must be lodged within one month of the contested judgment being served by a bailiff.⁵⁰

If the tribunal decides to annul the tax bill wholly or partly for a reason other than the statute of limitations, the case remains pending before the court for an additional six-month period, during which the tax authorities may submit an alternative assessment based on all or part of the same elements as the annulled tax to the tribunal. In such cases, the parties' right to appeal against the tribunal's decision is suspended. If the tax authorities submit an alternative assessment, the deadline to lodge an appeal against the tribunal's decision starts running from the time the decision on the alternative assessment is served (Article 356 CIR1992).⁵¹ However, a taxpayer may lodge an appeal before the end of the six-month waiting period and it will be admissible.⁵² The alternative assessment is allowed to the tax authorities provided that the court did not decide on the statute of limitation or the taxable basis when dismissing the case of the tax authorities.⁵³

The tax authorities are not allowed to submit an alternative assessment if the tax director fails to decide on the complaint before the taxpayer brings the case before the tribunal.

ii Right to appeal

The court of appeal has full jurisdiction and it must revisit the case. The procedural steps are the same as those before the tribunal.

Unless the First President of the court of appeal decides otherwise in specific circumstances, the taxpayer is heard by a single judge.

The tribunal's decision is suspended during the appeal procedure and the period during which an appeal can be lodged (Article 377 CIR1992).

iii Appeal on a point of law

The court of appeal decision may be challenged before the Supreme Court, but only on the grounds that the decision would conflict with the law or that it would infringe an essential procedural requirement. In order to leave little room for discussion before the Supreme Court, courts of appeal prefer to reason their opinion based on their finding of the facts.

If the Supreme Court quashes the court of appeal decision, the case will be submitted to another court of appeal or another chamber of the same court of appeal, which will have jurisdiction only to the extent to which the dictum of the earlier decision has been invalidated and the court of appeal to which the case is referred must settle the case in line with the Supreme Court's dictum.⁵⁴

iv Preliminary rulings

Tribunals, courts of appeals and the Supreme Court may refer tax issues for a preliminary ruling before the Constitutional Court or the ECJ.

The Belgian Constitution provides that a tax can only be levied and exemption can only be granted by an act of Parliament ('no taxation without representation'). The Constitutional Court has repeatedly held⁵⁵ that the power to decide on the principle of a tax and its essential elements belongs to the legislature.⁵⁶ However, a taxpayer may invoke a rule that supersedes an act, such as the Constitution, European legislation and the ECHR. A taxpayer may even claim the annulment of an act that conflicts with the Constitution before the Constitutional Court within six months of the official publication of the act.

Ordinary courts and tribunals are willing to discuss the compliance of a Belgian act with superior international rules and to set aside a non-complying act. They must refer the issue of the compliance of an act with the Constitution to the Constitutional Court (and they do) before setting aside the application of a legal provision on the ground that it is conflicting with the Constitution. However, Belgian judges do not always refer challenging cases to the ECJ, and decide themselves whether a contested Belgian provision complies with EU law.⁵⁷

When a Belgian tax provision is held to be contrary to a superior rule by the Constitutional Court or the ECJ, the tax authorities defer to the case law before the contested provision is amended by the legislature, and even invite the taxpayers to behave as if such a provision had been amended.⁵⁸