How to compute the one-month period under Article

April 2011
How to compute the one-month period under Article
346,3rd indent Income Tax Code, as applicable
before 7 June 2010, in pending tax litigations?
Contents
The Tax Administration has to respect a one-month
waiting period which is given to the taxpayer to respond
to a notice of rectification - How to compute the onemonth period under Article 346, 3rd indent Income Tax
Code, as applicable before 7 June 2010, in pending tax
litigations?
1
Applicable provisions and case-law
When the Tax Administration purports to amend a taxpayer’s annual tax
return, it must send the taxpayer a so-called “notice of rectification” of the tax
return (“Avis de rectification”/“Bericht van wijziging”) mentioning the reasons
justifying the proposed amendments. The taxpayer has one month to reply in
writing to the notice of rectification. The Tax Administration cannot issue a
supplementary assessment before the end of that one-month period, unless
the taxpayer agrees to the proposed amendments or the rights of the
Treasury are jeopardized by other reasons than the statute of limitations
(Article 346 Income Tax Code 92 (“ITC 92”)). Except for these two
circumstances, the Tax Administration must respect the one-month waiting
period under penalty of annulment of the entire supplementary taxation.
rd
A new version of Article 346, 3 indent ITC 92, as applicable since 7 June
1
2010 , states with respect to the computation of that one-month waiting
period that it starts running as from the third working day after the handing
over of the notice of rectification to the postal services.
rd
Before 7 June 2010, Article 346, 3 indent ITC 92 stated that the one-month
period began as from the “sending”, i.e. as from the date of handing over of
the notice of rectification to the postal services.
rd
The amendment of Article 346, 3 indent ITC 92 was introduced in May 2010
in order to anticipate an imminent preliminary decision of the Constitutional
Court requested by the Court of Appeal of Antwerp concerning the way of
1
Entry into force of the Law of 19 May 2010.
1
1 Applicable provisions and caselaw ............................................ 1
2 Application of case-law to
pending tax litigations ............... 2
3 Consequence: annulment of the
assessment and no possibility to
issue a new assessment in case
of violation of a rule related to
statute of limitations or in the
absence of a decision from the
Regional Director ...................... 3
4 Impact in practice on pending
tax litigations and
recommendations ..................... 3
rd
computation of the one-month waiting period under Article 346, 3 indent ITC
92.
On 2 June 2010, the Constitutional Court held that computation of that period
as from the date of handing over of the notice of rectification to the postal
services is disproportionate and violates the rights of defence of the taxpayers
and is therefore contrary to Articles 10 and 11 of the Constitution. Indeed,
rd
Article 346, 3 indent ITC 92, as applicable before 2 June 2010, implied that
the period during which the taxpayer may respond to the notice of rectification
started to run before the taxpayer actually received the notice of rectification.
The Constitutional Court suggested that the starting point for the one-month
2
period should be the third (working) day after the notice of rectification has
been handed over to the postal services. In fact, the Constitutional Court
rd
applied to the one-month period provided for under Article 346, 3 indent ITC
92 the so-called “receipt theory” that it had already applied in the past to
compute the starting point of the period in which tax protests can be filed by
taxpayers.
The Supreme Court also adheres to the “receipt theory”. However, the
position of the Supreme Court with regard to presumptive receipt of
registered letters by a taxpayer differs from that of the Constitutional Court.
The Supreme Court considers that the earliest point of the presumptive
receipt of a registered letter by the taxpayer is the next working day after the
letter has been handed over to the postal services.
2
Application of case-law to pending tax litigations
As a result of the Constitutional Court decision of 2 June 2010, the “receipt
theory” is applicable as from 2 June 2010 to all those notices of rectification
for which the one-month period has not expired yet on that date.
The Minister of Finance has recently confirmed that this computation method
is also applicable to all pending administrative and judicial tax appeals.
Although some case-law applies the “receipt theory” suggested by the
Constitutional Court, other case-law even considers that the computing
method suggested by the Constitutional Court cannot be applied because
there is a gap in the law as a result of the decision of the Court which can
only be remedied by the legislator. According to that case-law, the application
of the “receipt theory” of the Constitutional Court leads to the conclusion that
the one-month period never validly started to run and hence never expired.
2
The wording of the decision of the Constitutional Court is not entirely clear as to whether or
not it refers to three “working” days in accordance with Article 53bis of the Judicial Code or to
any three days.
2
3
Consequence: annulment of the assessment and no
possibility to issue a new assessment in case of violation
of a rule related to statute of limitations or in the absence
of a decision from the Regional Director
If a supplementary assessment has been issued before the end of the onemonth period during which the taxpayer may reply to the notice of
rectification, it is null and void.
If the Tax Administration’s right to issue a supplementary assessment is timebarred, assuming the one-month period had been respected, there is an
issue of violation of a rule related to the statute of limitations. In that situation,
the Tax Administration is precluded from issuing a new assessment after the
annulment of the supplementary assessment (Articles 355 and 356 ITC 92).
In addition, even if there is no issue of violation of a rule related to the statute
of limitations, but the one-month waiting period has been violated by the Tax
Administration and the supplementary assessment has been annulled by a
Court, there is also no possibility for the Tax Administration to submit to the
Court a new assessment (Article 356 ITC 92) in the absence of a decision
from the Regional Director (i.e., in the case where the taxpayer has decided
to submit the case directly to a Court without waiting for the decision from the
Tax Director). However, the Tax Administration may in the event of the
annulment of the supplementary assessment try to re-assess the taxpayer
under an old version of Article 355 ITC 92, which might arguably still be
applicable to assessments relating to assessment years prior to 1999.
4
Impact in practice
recommendations
on
pending
tax
litigations
and
In pending tax litigations and in light of the “receipt theory” as endorsed by the
Constitutional Court, it is possible to claim and obtain the annulment of the
issued supplementary assessment – without any possibility for the Tax
Administration to issue a new assessment in certain cases –, where the Tax
Administration has issued a supplementary assessment before the end of the
one-month period granted to the taxpayer to respond to a notice of
rectification.
Therefore, in order to invoke an argument of nullity of the assessment in all
pending tax litigations (especially those where the Tax Administration issued a
supplementary assessment at the end of the three-year assessment period),
it is strongly recommended to verify whether the one-month period granted to
the taxpayer for response has been respected by the Tax Administration.
To make that check, we recommend:

first, verifying whether the date mentioned on the notice of rectification
corresponds with the date of its effective handing over to the postal
services. The forms which are commonly used by the Tax
Administration to send registered letters are “Nr 605 B” or “F 407”.
Such a form must carry a stamp of the postal services which shows
the date on which the notice of rectification has been handed over to
3
the postal services. The taxpayer is entitled to request from the Tax
Administration a copy of the form used either pursuant to the Law on
the publicity of the administrative acts or pursuant to Article 877
Judicial Code (only if the tax dispute has been brought before a
judge). We know of cases where there was a difference between the
date mentioned on the notice of rectification and the date when that
notice was effectively handed over to the postal services. Only the
second date is relevant for the computation of the one-month period;

second, verifying whether the one-month period during which the
taxpayer may reply to the notice of rectification has been respected by
the Tax Administration before issuing the supplementary assessment.
To make that check, in light of the case-law of the Constitutional
Court, one needs to consider that the starting point for the one-month
period is the third (working) day after the notice of rectification has
been handed over to the postal services. If the last day of that period
is a Saturday, Sunday or a public holiday, both the Tax Administration
and the Courts admit that the period is to be extended until the first
working today pursuant to Article 53 Judicial Code.

third, in light of the case-law of certain Courts that consider that the
one-month period never started to run as a result of the decision of
the Constitutional Court, one could envisage to invoke that position in
pending tax cases. However, please note that in such a case it is not
clear whether the annulment of the assessment based on this position
as such could preclude a new assessment. Indeed, it is not certain
that in such a case there is a violation of a rule related to the statute
of limitations.
4
Contacts
For further information
please contact:
Angélique Puglisi
Counsel
(+32) 2 501 94 82
[email protected]
Svjatoslav Gnedasj
Associate
(+32)2 501 94 70
[email protected]
Author: Angélique Puglisi
This publication is intended merely to highlight issues and not to be comprehensive, nor to provide legal advice. Should
you have any questions on issues reported here or on other areas of law, please contact one of your regular contacts, or
contact the editors.
© Linklaters LLP. All Rights reserved 2011
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Author: Angélique Puglisi
This publication is intended merely to highlight issues and not to be comprehensive, nor to provide legal advice. Should
you have any questions on issues reported here or on other areas of law, please contact one of your regular contacts, or
contact the editors.
5 LLP. All Rights reserved 2011
© Linklaters
Linklaters LLP is a limited liability partnership registered in England and Wales with registered number OC326345. The
term partner in relation to Linklaters LLP is used to refer to a member of the LLP or an independent consultant or, outside
of Belgium, an employee of Linklaters LLP or any of its affiliated firms or entities with equivalent standing and
qualifications. A list of the names of the members of Linklaters LLP and of the non-members who are designated as
partners and their professional qualifications is open to inspection at its registered office, One Silk Street, London EC2Y
8HQ, England, or on www.linklaters.com.
Please refer to www.linklaters.com/regulation for important information on our regulatory position.
We currently hold your contact details, which we use to send you newsletters such as this and for other marketing and
business communications.
Linklaters.com