Belgium: Discrimination of foreign investment companies – A first practice note published

Olivier Hermand 21 March 2013


The Belgian tax administration has recently published a practice note dealing with the consequences of the CJEU’s decision of 25 October 2012

Although restrictive on many aspects, this practice note nevertheless constitutes a positive sign and addresses various topics of importance for foreign investment companies having filed withholding tax claims in Belgium:

  • Priority Handling: First of all, the practice note confirms that pending administrative or judicial cases entering into the scope of the practice note “should be accorded priority handling”.
  • Limited Scope: However the practice note has a rather limited scope as it is limited to investment companies having the UCITS status or alike and to dividends paid out as from 1 January 2007. It nevertheless also opens the possibility for investment companies established in third countries to file claims, but with very restrictive conditions;
  • Statute of limitations: The practice note also confirms that actions for refunds of withholding tax unduly paid to the Treasury prescribe after five years from 1 January of the year during which the withholding tax was paid (e.g. a claim filed in 2013 can cover withholding taxes suffered in 2009 onwards);
  • Evidence: In terms of elements of proof, it only mentions the importance to demonstrate the absence of credit or refund of withholding tax in the residence State.
  • Tate & Lyle: Finally, it is interesting to note that it also makes a link to the upcoming practice note which will be published further to the CJEU arrest in “Tate & Lyle Investments”.