Can an attorney apply the favorable copyright tax regime?

Can attorneys have a portion of their income tax-favorably taxed as copyright compensation? This question has occupied the legal and tax worlds for years. Yes, in theory legal writings such as conclusions and opinions fall under copyright law. However, a ruling of 20 May 2025 of the Antwerp Court of Appeals emphasizes that the bar for proving the required "originality" is extremely high. Without concrete and convincing evidence per writing, the tax administration will still tax the income as regular professional income at the progressive rates.

The facts and the long legal battle

The case revolves around an independent attorney who had entered into an agreement with his law firm for the transfer (assignment) of his copyrights. This included all texts he created, such as opinions, conclusions, contracts and notices of default. For this assignment, he received a lump-sum payment, which he qualified in his tax return as movable income, subject to the favorable rate of 15% instead of the progressive rates for professional income (applying Article 17 § 1, 5° Income Tax Code).

The tax administration disagreed, stating that this income was part of normal professional activity and thus should be taxed as income (professional income). What followed was a legal process that would go through all the stages:

1. Court of First Instance (Ghent): The judge agreed with the tax administration, ruling that it is rather "exceptional" for an attorney to create works that qualify for copyright protection.
2. Court of Appeals (Ghent): The court upheld the ruling and went a step further by stating that in the course of his professional practice, an attorney "normally" does not create intellectual creations resulting from free and creative choices.
3. Supreme Court: This was the turning point. The Court of Cassation broke the Ghent ruling on 24 March 2023. It ruled that legal and deontological rules do not in principle prevent an attorney from creating original works that reflect his personality. The case was referred to the Antwerp Court of Appeals for a review on the merits.

The decision of the Antwerp Court of Appeal

In its judgment of 20 May 2025, the Antwerp Court of Appeal confirmed the principle set forth by the Court of Cassation: writings by attorneyss can, in principle, enjoy copyright protection.

However, the court immediately adds a crucial condition: originality must be shown in concreto and "writing by writing." A general reference to the types of documents in an assignment agreement does not suffice.

The attorney in question submitted a selection of his works, including a subpoena, a brief, articles of association for a foundation and a contract of sale. After analysis, the court ruled that these documents did not meet the originality requirement. The court stated that it did not show that the texts were an "own intellectual creation" that reflected the attorneys's personality. Merely editing or supplementing existing legal models is insufficient to constitute an original work.

Consequently, the court concluded that the tax administration had correctly taxed the fees as income (professional income). Indeed, the income was derived in response to the practice of the profession of attorney, and not as remuneration for the transfer of actual, original copyrighted works.

Legal analysis and interpretation

At the heart of the discussion is the "originality condition. Belgian copyright states that in order for a work to be protected by copyrigh, it must be "its author's own intellectual creation, reflecting the personality of the latter and expressed through the author's free, creative choices in the creation of that work."

The judgment of the Court of Cassation was a victory in principle: it confirmed that the profession of an attorney does not necessarily preclude the application of the favored regime. However, the judgment of the Antwerp Court of Appeal is a reality check: the burden of proof is particularly heavy. Tax authorities and courts will not accept that all legal texts are by definition original. The taxable attorney must be able to demonstrate exactly where his unique, creative stamp was put on the text. This goes beyond correct legal analysis; it must involve the specific word choice, structure and wording that distinguish the work from a standard document.

It is important to note that this case was adjudicated under the old legislation. Since 1 January 2023, the terms of the copyright tax regime have been significantly tightened by the program law of December 26, 2022. Although these new rules have tightened the scope of the favorable personal income tax regime for copyrights, this case law shows that even under the old regime the tax authorities were already applying a very strict interpretation of the originality condition.

What this specifically means

• For the attorney: Anyone considering receiving a portion of their income as copyright royalties must prepare a very detailed and substantiated file. You must be able to demonstrate, by document or type of document, what specific elements make the work original. Merely repeating legal opinions or filling in models will not suffice.
  For the tax administration: The administration sees its strict stance confirmed. It will continue to demand concrete proof of originality and reject general claims. This ruling gives them a strong argument for placing the burden of proof squarely on the taxpayer.

FAQ (frequently asked questions)

Is the tax-favored copyright regime now completely impossible for attorneys?
No, not in theory. The law does not exclude attorneys. However, this ruling makes it clear that the practical burden of proof is very heavy. Only attorneys who can show that their work goes significantly beyond the application of legal techniques and the use of models stand a chance.

What types of documents are most eligible for copyright protection?
While any document could theoretically be original, standard default notices or simple contracts based on models will be difficult to defend. Complex legal opinions with a unique structure, creatively drafted contracts for specific situations, or a uniquely constructed conclusion would stand a better chance, provided the creative choices are demonstrable.

Does this reasoning apply to other liberal professions as well?
Absolutely. The originality requirement is a universal principle within copyright law. Architects, consultants, engineers and other professionals who receive copyright fees face the same high burden of proof to demonstrate the creative and personal stamp of their work.

Conclusion

The judgment of the Antwerp Court of Appeal is a clear warning. The principled possibility for attorneys to benefit from the tax-favored copyright regime remains intact, but the practical road to it is littered with evidentiary obstacles. Without meticulously documented proof of originality, copyright remuneration remains a significant tax risk.