On September 10, 2025, the FPS Finance announced its position on the implications of two controversial rulings by our highest courts on the possibility of requesting a refund of (uncollected) withholding tax (Circular 2025/C/56).
What are the deadlines for requesting a refund of the professional withholding tax according to the ITC92?
According to article 368 of our Income Tax Code 1992 (ITC92), the claim for a refund of withholding tax expires after five years, counting from January 1 of the year in which the withholding tax was paid. The refund of excess withholding tax paid on the basis of one of the exemptions from payment provided for by law (e.g., for scientific research) expires after four years (three years from January 1 of the year following the tax year).
In December 2023, the Court of Cassation ruled that these 4- and 5-year periods do not relate to the submission of a request for reimbursement to the FPS Finance, but rather to the filing of a legal claim before the court (Cass. December 21, 2023). The Constitutional Court endorsed this view in a judgment of March 13, 2025 (Constitutional Court No. 43/2025, March 13, 2025).
How does this case law affect current practice?
This case law undermined a long-standing practice whereby companies wishing to benefit from the exemption from paying withholding tax for scientific research submitted a request to the FPS Finance. Not only is the deadline for submitting such a request now in question, but the legal basis on which such a request is based appears to be non-existent. The possibility of submitting such requests to the tax authorities would be based solely on tolerance.
The FPS Finance has announced its position in Circular 2025/C/56. According to the administration, the above-mentioned case law of the Court of Cassation and the Constitutional Court does not mean that overpaid withholding tax can only be recovered by means of legal action before the courts. In the opinion of the administration, the refund of withholding tax can – and indeed must! – first be requested by means of an application submitted within the time limits laid down in Articles 368 or 368/1 of the Income Tax Code 1992.
What if the refund request is denied?
If a request for a refund does not lead to the decision desired by the taxpayer, the administration states that he can still bring legal proceedings before the court, even outside the time limits specified in Articles 368 and 368/1 ITC92. In that case, the administration will not consider this legal action to be ‘inadmissible’ and will not argue this before the court to which the request is made.
It is clear that the FPS Finance does not want to be bypassed in claims for refunds of withholding tax. According to the circular, such claims must therefore first be submitted to the FPS Finance before the taxpayer can go to court.
What are the implications of this circular for companies wishing to benefit from the exemptions?
For companies that wish to make use of the various exemptions from withholding tax provided for by law, this circular is not bad news at first glance. After all, this means that they retain two options for requesting the exemption retroactively, namely:
- by means of a regular ‘negative declaration’ (deadline August 31 of year X+1)
- via a ‘claim for refund‘ (deadline December 31 of year X+4).
There are some questions to be asked about the administration’s view. According to the Court of Cassation and the Constitutional Court, the 4- and 5-year time limits in Articles 368 and 368/1 ITC92 are time limits for filing a legal claim. The legal action affects public order. The question therefore arises as to what the effect will be of the FPS Finance’s promise not to invoke the statute of limitations itself. We therefore advise companies to be cautious and to ensure that the 4- and 5-year periods do not expire before a decision has been made on their claim for restitution.
What impacts on the limitation periods?
Finally, the question arises as to whether the submission of a request has an interrupting or suspensive effect with regard to the limitation periods of Articles 368 and 368/1 of the ITC92. The submission of such a purely “voluntary” request remains possible even after the case law of the Court of Cassation and the Constitutional Court, but in principle this has no influence on the course of the limitation period.
Since the Income Tax Code 1992 does not contain any specific provisions, common law (Article 2244 of the Civil Code et seq.) applies. This implies that the limitation period can only be interrupted by, among other things, a subpoena, an order to pay, a judicial reminder, a seizure, or an extrajudicial notice of default that meets the legal requirements. From a practical point of view, it is advisable for taxpayers to send an extrajudicial notice of default in a timely manner as the limitation period approaches its end, so that a new period begins, or to request that the tax authorities waive the current limitation period. Initiating legal proceedings may also be an option, although in that case the court will have to rule on the substance of the request.
Our support and advice?
Has your company remitted too much withholding tax in recent years?
Leyton can assist you in identifying recovery opportunities, calculating the amounts to be recovered, and submitting and following up on the administrative appeal. Please do not hesitate to contact us to discuss the various options.
