Register your R&D Projects and Programs timely, to benefit from the Salary WHT Exemption!
At the end of April, a Circular letter on the R&D salary withholding tax exemption was published which states that, as of 1 August 2023, the qualifying projects and programs must be registered before their start date to benefit from the exemption at all.
Consequences of this new position
Traditionally, the tax authorities allowed a project or program to be notified to Belspo after its start date. The exemption could then still be applied for the remaining duration of the project or program, specifically from the month in which it was notified (no retroactive effect).
Based on a recent Supreme Court decision, the tax authorities have abandoned this tolerant approach. More specifically, the notification must be validly made before the start date of the project or program in question. Once the project or program has started without such a prior notification, the exemption for this project or program can never be applied (not even for the future).
However, the tax authorities provide for a transition period for existing projects and programs until 31 July 2023:
- If they were duly/correctly notified before 1 August 2023, these notifications remain valid even if they happened after the start date of the project/program. The exemption can be applied from the month of notification (in accordance with the traditional position).
- If they were not duly/correctly notified before 1 August 2023, no exemption from withholding tax can be applied anymore (not even for the future).
Undertakings benefitting from the R&D salary withholding tax exemption should ensure that they have the necessary procedures in place so that the programs and projects are registered prior to their start date.
In general, undertakings should be aware that this new position is only one of the many instances where the conditions to benefit from the exemption have been interpreted very strictly/formally and that the tax authorities continue to conduct (aggressive) tax audits in this respect. Hence, it is key to be sufficiently informed about the ins and outs of this exemption to avoid any discussions on its correct application.
We are at your disposal for any more information or specific issues you may face. You can always reach out to one of the authors or your usual Linklaters contact.