The partial withholding tax exemption (PWT) is a fiscal incentive introduced by the Belgian government (article 2753 of the income tax code) to stimulate research and development (R&D) activities. It allows employers to retain a portion of the payroll withholding tax on the wages of eligible researchers. To benefit from this incentive, certain substantive and procedural conditions, including the notification of R&D projects or programs to BELSPO, must be met.
This notification of an R&D project or program must fulfill the following criteria:
- The identification of the debtor of the withholding tax;
- A description of the project or program demonstrating that it aims at basic research, applied research, or experimental development;
- The expected start date and the anticipated end date of the project or program.
⚠ Failure to provide proof of correct and timely notification may result in the complete rejection of the requested exemption, leading to a refund of unpaid amounts to the tax authorities, with late payment interest of 10% or more starting from the date of rejection and accumulating in case of repeated infractions.
In a worst case scenario, an inspector may invoke Article 358 of the Income Tax Code, which allows the tax authorities to audit and correct a withholding tax exemption for five years. This period applies when there are indications of insufficient or incorrect declarations, in particular when the conditions for partial exemption are not correctly met or justified. In practice, this means that the application of the PWT can be audited up to five years after the income year is concerned.
This emphasizes that the risk for companies applying the partial withholding tax exemption without robust documentation and compliance with the BELSPO notification requirements is not trivial. Hence, it is of utmost importance to make sure that the BELSPO notifications of your company are done in a correct way. This article aims to give you some attention points to consider when notifying R&D projects or programs to BELSPO.
Attention points for the notification
1. The title of the notified project
Or program must be clear and sufficiently precise to reflect the innovative nature of the activities performed. A generic title (e.g. “Software Development”, “Internal Optimisation”) may raise questions during an audit. It is therefore recommended that the title already indicates the technological field concerned, the R&D objective pursued, as well as the differentiating or innovative element of the project.
2. The start and end dates
Have become a major focus point since Circular Letter 2023/C/49. It is essential to demonstrate that projects/programs are notified before the actual start of the R&D activities. The start date must correspond to the real launch of the research or development work, and not to a purely administrative date. The project or program duration (end date) must be realistic based on the information available at notification. For a program, the end date must correspond to the latest expected end date of the included projects, whereas for an individual project it must reflect the reasonably expected closing date known at notification. These dates may be updated if the project evolves, provided the changes are traceable and consistent with the R&D logic.
⚠ Since 1 August 2023, the exemption applies only if the R&D project or program is notified to BELSPO before it starts. Projects not timely and correctly notified no longer qualify.
3. The description of the objective of the project or program
Must be precise and sufficiently detailed. It is not merely a matter of describing a business goal, but of explaining the technical or scientific problem addressed, what the company seeks to resolve, and why the solution is not trivial. An objective that is too vague or too general (e.g. “improve efficiency”) may lead the authorities to consider the notification as incomplete or insufficiently R&D-driven.
4. Link with the OECD Frascati criteria.
In order to support the R&D qualification, the notification also it is recommended to establish a clear link with the OECD Frascati criteria. The notified project/program must therefore demonstrate the following characteristics :
- Novelty: the project aims at knowledge or solutions that do not yet exist within the company or on the market.
- Creativity: it involves an original and non-routine approach.
- Technical or scientific uncertainty: the outcome, methodology, or feasibility is not known in advance.
- Systematic nature: the project is planned, structured, documented, and monitored.
- Transferability / reproducibility: the results can be documented, transferred, or reused.
5. The specific nature of the notifications.
Inspectors also pay close attention to the specific nature of the notifications. Generic descriptions or copy-paste content between projects, programs, or financial years are regularly challenged. Each notification must reflect the actual work performed by the company and its specific context, rather than a standardised description of R&D, and must also define distinct project objectives.
6. Proof of prior notification.
A final essential point concerns the proof of prior notification. The burden of proof lies with the company applying the wage withholding tax exemption. It is therefore necessary to retain evidence of the notification of creation date and any subsequent amendments, notably through dated screenshots or version of histories. During an audit, the authorities verified that the notification effectively existed before the start of the relevant R&D activities.
