The copyright tax regime in Belgium

Introduction: the evolution of a tax favor system

The tax treatment of copyright and related rights income has been a subject of intense debate, legal battle and legislative evolution in Belgium for decades. What once began as a zone of legal uncertainty transformed in 2008 into a widely accessible tax optimization tool, only to become subject to a stringent reform in 2023. For the Belgian entrepreneur, creative professional and legal advisor, it is crucial to understand that the December 26, 2022 reform does not mean the end of this regime, but it does mark a fundamental paradigm shift. The regime has evolved from a broadly applicable regime to a complex custom legal regime that requires a deep understanding of both copyright and tax law.

The key question before us today is no longer “how much can I optimize?” but rather “does the work and the author still qualify within the narrow limits of the law?” Whereas previously a broad interpretation was common, the current legal text, supported by the Constitutional Court and a restrictive stance of the Office for Advance Tax Rulings (OAR), forces a strict and documented approach. Below, we offer an analysis of the current landscape. We dissect the historical context to make sense of the ratio legis, analyze the material and personal scope in great detail, and guide you through the complex calculations of the new limit amounts.

Part I: Historical context and the ratio legis

To understand the current complexity and restrictive nature of the 2022 legislation, it is necessary to go back to the origins of the regime. The tension between the economic reality of creative work and its tax qualification is the common thread throughout its history.

1.1. The era of legal uncertainty (Before 2008).

Prior to the July 16, 2008 law, the tax treatment of copyrights was in a twilight zone characterized by a fundamental lack of consistency. The crux of the problem lay in the qualification of income. In theory, the tax administration had three possible qualifications, each with a completely different tax price tag: professional income, miscellaneous income or movable income.

The legal basis for qualification as movable income was nevertheless in place. The Copyright and Neighboring Rights Act of June 30, 1994 (the predecessor of the current Title 5 of Book XI Code of Economic Law (CEL)) explicitly stated in Article 3 that property rights are movable rights. Article 17, § 1, 3° of the Income Tax Act 1992 (ITA92) confirmed this by treating income from the concession of movable property as movable income.

Nevertheless, in practice the tax authorities often tried to reclassify this income as professional income. In doing so, the administration argued that, for example, a publishing contract was not a pure concession agreement, but an assignment (sale), which meant that article 17 ITA92 would not apply. Moreover, it was often argued that the income was the direct fruit of the author's labor, and thus should be taxed progressively. This led to distressing situations where the tax authorities lumped together the cession (transfer of ownership) and the concession (right of use) in order to erode the movable qualification, which met with intense criticism in legal doctrine.

A third track, qualifying as miscellaneous income (taxed at 33%), was sometimes used for occasional work outside the professional sphere. Here, however, debate arose over what exactly “occasional” meant. Jurisdictions over authors who made sporadic contributions to magazines or books were divided. Some courts viewed updating a textbook as a “continuing occupation” (professional income), while others viewed it as an occasional act (miscellaneous income). This arbitrariness created an untenable situation for the taxpayer.

1.2. The 2008 law

With the law of July 16, 2008 the legislature intervened. The objective was twofold. On the one hand, it wanted to restore legal certainty by creating a clear legal framework. On the other hand, there was a socio-economic motive: to support the artist. The legislator recognized that artistic income is of a different nature than regular professional income. They are often volatile, uncertain and the result of long, unpaid periods of creation. The combination of the one-year principle in personal income tax and progressive rates often resulted in a tax penalty for this group in the years when they did succeed.

The solution was elegant in its simplicity: income from the cession or concession of copyrights was legally enshrined as movable income (art. 17, § 1, 5° ITA92), taxable at a flat rate of 15%. To prevent abuse, a recharacterization limit was introduced (originally EUR 37,500). Up to this amount, the income was irrefutably presumed to be movable; above this, it could (if used for the professional activity) become professional income.

1.3. The expansion of the regime

What was intended as a measure for the “real” artist grew over the following decade into a widely accepted remuneration technique in the knowledge economy. Indeed, the 2008 law defined beneficiary and work very broadly by simply referring to copyright law. Since the threshold for copyright protection is low (originality and expression), software developers, architects, lawyers and marketers could also rely on the regime. The ruling practice confirmed this broad reading, leading to an explosion in budgetary costs and a perception of tax inequality.

1.4. The 2022 correction

The Program Act of Dec. 26, 2022, prompted by opinions from the High Council of Finance and the FPS Finance's General Vision Paper, had the explicit goal of “narrowing the gap between ends and means.” Rather than abolish the regime, the legislator wanted to fold it back to its original target group. This was achieved through three mechanisms: a narrowing of the material scope (nature of the work), a tightening of the personal scope (capacity of the author) and the introduction of strict financial caps.

Part II: Material scope

The cornerstone of the reform is the redefinition of what qualifies as a “copyrighted work” for tax purposes. Where previously a reference to the entire code was sufficient, the selection is now surgical.

2.1. The limitation to Title 5 of Book XI CEL

The new Article 17, § 1, 5° ITA92 refers specifically to “copyright and related rights... referred to in Book XI, Title 5, of the Code of Economic Law.” This addition of “Title 5” is crucial. It implicitly excludes all intellectual property rights that are regulated elsewhere in the CEL, even if they are closely related to copyright.

The law requires that the income relate to:

Original works of literature or art (as referred to in Art. XI.165 CEL); or
Performances of performers (as referred to in Art. XI.205 CEL).

These terms should be interpreted as in common law, but the tax legislature has made a clear selection by specific reference.

2.2. The exclusion of software

The most far-reaching consequence of this restriction is the exclusion of computer programs. Software is protected in Belgian law under Title 6 of Book XI CEL (art. XI.294 et seq.), as a transposition of the European Software Directive. Because the tax law refers only to Title 5, income from pure software development (source code) has been out of scope since Jan. 1, 2023.

2.2.1. The position of the Government and the OAR

During parliamentary preparations, the finance minister stated unequivocally that software developers were excluded. The Office for Advance Tax Rulings (OAR) strictly followed this line, issuing negative decisions for applications involving computer programs beginning in 2023. The reasoning was legislative-historical and teleological: the legislature wanted to limit application, and the explicit non-listing of Title 6 was a deliberate choice.

2.2.2. Confirmation by the Constitutional Court (2024).

The legal community reacted with disbelief. It was argued that software was “equivalent” to works of literature and that an exclusion was discriminatory. The Constitutional Court settled the argument in its ruling of may 16, 2024. The Court ruled that the exclusion of computer programs is constitutional.

The Court's reasoning is remarkable and open to criticism, but binding. The Court stated that software development often occurs in a context of “stable economic relationships” (such as salaried employment or long-term consulting), which contrasts with the irregular and uncertain income stream of the classical artist that the legislature sought to protect. The Court thus accepted that, within its broad discretion in tax matters, the legislature may distinguish between categories of works to achieve a specific policy goal.

2.2.3. Future perspective

Although the legal door is currently closed, the political door is ajar. The federal coalition agreement of the De Wever I government (January 2025) includes the intention to remove this exclusion and eliminate discrimination between digital and other professions. However, until there is a new law, the exclusion will remain in place.

2.3. Works of literature and art

Now that software is excluded, the focus shifts to what does still qualify under Title 5, guided by the case law of the European Court of Justice (ECJ).

2.3.1. The originality requirement

There is no requirement of artistic quality or aesthetic value. The only threshold is originality. In accordance with the ECJ's Infopaq, Painer and Cofemel rulings, a work is original if it is the author's “own intellectual creation.” This requires that the author has been able to make free and creative choices, giving the work a personal stamp.

This criterion is essential for professions that are in the twilight zone:

Lawyers: For a long time, there was debate as to whether legal conclusions and opinions were sufficiently “free,” given the strict legal frameworks. However, the Court of Cassation ruled on March 24, 2023, that a lawyer can indeed enjoy copyright protection. While the law imposes restrictions, it does not prevent the lawyer from making creative choices in structure, argument structure and language. The OAR follows this line, provided the originality is specifically demonstrated.
Marketing and Communications: For marketers, copywriters and graphic designers, the threshold is usually easy. Creating a powerpoint presentation, writing advertising copy or designing a logo requires creative choices par excellence. The OARVB issued numerous positive rulings for this sector in 2023 and 2024, accepting the creation of visual identities, strategies and content as copyrighted.

2.3.2. The form requirement

An idea in itself is not protected. It must have taken a concrete form (Levola ruling). This can be a text, a drawing, a photograph, but also an oral presentation (e.g., a lecture or podcast). The medium is irrelevant; what matters is the expression.

2.4. Databases and other doubtful cases

Also databases are in a specific position. They can be protected by copyright (if the structure or choice of data is original) as well as by a sui generis right (protection of the investment). Copyright protection of the structure falls under Title 5 and thus qualifies for the tax regime. The sui generis protection (Title 7 CEL) falls outside it. This means that income from the transfer of a database must be split if both rights come into play.

Part III: Personal scope

In addition to the nature of the work, the 2022 law also imposes strict requirements on the capacity of the taxpayer. The legislature created two categories: the art worker and the public author.

3.1. Category 1: The holder of an artwork certificate.

The first gateway is reserved for the “real” artist. Those who have a work of art certificate, as referred to in the law of December 16, 2022, has automatic access to the tax regime (insofar as the income results from the transfer or license of copyright). This certificate is issued by the Artwork Commission after a thorough review of professional artistic practice.

This gateway is particularly relevant for actors, musicians, visual artists and writers. For the broad group of consultants, IT profiles (insofar as they do not code), architects and marketers, this route is usually closed, since their activity is not primarily considered “artistic” within the meaning of social legislation.

3.2. Category 2: The public communication (the residual category).

For those without an artwork certificate, there is an alternative route. However, it is linked to a specific exploitation condition. The rights holder must transfer or license his rights to a third party for the purpose of:

Communication to the public;
Public performance or execution; OR
Reproduction.

These conditions are cumulative with the general exploitation requirement, but add a specific dimension.

3.2.1. Communication to the public: the ECJ criterion

The concept of “communication to the public” is an autonomous concept of Union law. According to established ECJ case law (e.g., SGAE, Svensson), it requires a communication to an “indeterminate number” and “fairly large number” of persons. A presentation to a closed group of five customers in a conference room may not qualify. A publication on a public website, a podcast on Spotify or an article in a trade journal does qualify.

3.2.2. The role of reproduction

Crucially, the law connects the terms with “OR.” “Reproduction” is an independent criterion. This is important for sectors where public communication is questionable.

Take the example of an architect. A plan for a private home may not be communicated to “the public.” However, the plan does get reproduced (on paper, digitally, and eventually in the form of the building).

In the explanatory memorandum, the minister tried to subordinate reproduction to public communication, but the text of the law and the OAR's interpretation contradict this. In recent decisions (including on 3D animations, November 2024), the OAR accepts that works shared with a limited group (contractors, engineers, clients) still qualify, in part because there is reproduction and a form of dissemination.

3.3. The exploitation obligation

On top of the two categories, a general condition applies to all: the transfer must be made “with a view to exploitation or actual use.” This is an intentionality test. It is not required that the work become a commercial success, but rather that the transferee (e.g., the company) has the intention to use the work in its economic activity. Mere “stockpiling” of rights without any use, just to justify a tax regime, is thus excluded. The OAR checks this strictly: it must be demonstrated how the company uses the works (e.g. in marketing, sales to customers, internal processes).

Part IV: The financial limit amounts and requalification

If you are through the gate of material and personal scope, you enter the complex mechanics of Article 37 ITA92. Here the legislature has built in a system of “locks” to prevent excesses.

The basic principle is that copyright income is movable. However, if they are used in the exercise of professional activity (which is the case for most freelancers and business executives), they are reclassified as professional income unless strict quantitative conditions are met.

4.1. The test of professional use

Before testing the limit amounts, one must determine whether Article 37(1) ITA92 applies at all. This article states that movable income becomes professional income if the goods (the rights) are “used for the exercise of professional activity”.

Historically, there has been much debate about this (including 2017/2018 Court of Cassation cases). Is copyright compensation the “fruit” of labor (and thus professional income), or compensation for an asset (movable)?

The Court of Cassation ruled that the mere fact that a work was created during professional practice does not automatically mean that it is “used” for professional practice. However, in practice, the tax authorities almost automatically assume that a connection exists between business managers and employees. With the 2022 reform, the legislature implicitly reinforced this presumption by introducing the limit amounts.

4.2. The three limit amounts (Article 37(2) ITA92)

If there is professional use, income retains its movable character (15% tax) only if and to the extent that it does not exceed the following limits.

4.2.1. The relative cap: the 30% rule

The copyright fee may not exceed 30% of the total fee. Total compensation is the sum of compensation for services rendered (professional income) and copyright compensation.

Formula: Copyright / (Copyright + Professional Income) ≤ 30%.
Consistency: For every 3 euros of royalties, there must be at least 7 euros of professional income. This prevents one from converting a salary entirely into royalties.

OAR's 25% Practice:

Although the law allows 30%, in its ruling practice the OAR often takes a stricter, pragmatic approach for certain sectors. For creative professions (such as web designers or marketers), the OAR often applies a “creativity percentage”.

Example: A web designer spends 40% of his time on creative work and 60% on technical/administrative work. The OAR then often applies a maximum of 25% (or less) to that creative portion. The calculation then becomes: Total fee x 40% (creativity) x 25% (valuation royalty). This results in an effective rate that can be well below the statutory 30%.

Exception: The 30% rule does not apply if the transfer of rights is not accompanied by a delivered performance (e.g., an author selling an old manuscript without still working on it), or for income through collective management organisations such as Sabam.

4.2.2. The absolute cap

The amount of copyright may not exceed EUR 37,500 in absolute terms (base amount). This amount is indexed annually.

Income Year 2024 (Tax Year 2025): EUR 73,070.
Income Year 2025 (Tax Year 2026): EUR 75,360.
Every euro above this amount automatically becomes professional income.

4.2.3. The average of the previous 4 Years

This is the most insidious limit. One must average the copyright income of the four preceding taxable eras.

If this average is higher than the absolute cap (EUR 75,360 for TY 2026), then the entire regime expires.
This is an all-or-nothing penalty. You then do not fall back on the cap, but everything becomes professional income from the first euro.
Starting activity: If the activity has been in progress for less than 4 years, the average is calculated on the effective years, which can be disadvantageous for those starting with a large project.

Part V: Calculation and rates

The appeal of the regime lies in the combination of a low rate and a flat expense deduction.

5.1. Rate and cost flat rate

The gross amount (within limits) is subject to a withholding tax of 15%. Before this tax is calculated, expenses may be deducted. The law provides for a highly advantageous flat-rate cost system, which is degressive.

The tranches (2025):

Tranche 1 (0 to EUR 19,480): 50% cost forfait.
Tranche 2 (EUR 19,480 to EUR 38,970): 25% cost forfait.
Tranche 3 (Above EUR 38,970): 0% cost flat rate.

Notice: There was confusion in the legislative text as to whether expenses could still be deducted above the second tranche (the general flat rate of 15% for movable income). The administration and the legislature have clarified that for copyrights, the flat rate reverts to 0% above the second tranche.

5.2. Practical calculation example

Take an independent marketing consultant with a total turnover of EUR 120,000. He applies (for safety and substantiation) a copyright fee of 20% of his turnover.

Gross royalties: EUR 24,000.
Calculation costs:
- On the first 19,480 EUR, he may deduct 50% = 9,740 EUR.
- On the remaining portion (24,000 - 19,480 = 4,520 EUR) he may deduct 25% = 1,130 EUR.
- Total lump sum cost = 10,870 EUR.
Net taxable: 24,000 EUR - 10,870 EUR = 13,130 EUR.
Withholding tax (15%): 13,130 EUR x 15% = 1,969.50 EUR.
Municipal tax (approx 7% on the tax): €1,969.50 x 7% = €137.87.
Total effective tax: €1,969.50 + €137.87 = 2,107.37 EUR.

Results: On a gross income of EUR24,000, he pays only EUR1,969.50 in tax. This is an effective tax burden of 8.8%. In personal income tax, as top income, this amount would be taxed at 50% (plus municipal tax and social contributions), which would amount to more than EUR 12,000 in taxes. The benefit is obvious.

Part VI: declaration and formalities

Enjoyment of the benefit requires strict administrative follow-up. Errors in this may result in the rejection of costs or penalties.

6.1. The role of the debtor (withholding tax).

The entity paying the royalties (usually its own company or employer) acts as the debtor of the withholding tax.

Withholding: The debtor must withhold the 15% at the time of award or payment.
Declaration 273S: This deduction must be declared via a specific return (Form 273S) and forwarded to the tax authorities within the legal deadlines (usually 15 days after allocation).
Rate choice: The debtor must assess whether the 15% rate applies. In principle, if the limit amounts (e.g., the EUR 37,500 limit) are exceeded, he must withhold 30% from the excess (if it remains movable but falls outside the favored regime) or withholding tax (if it becomes professional income). The law places the responsibility on the debtor, but in practice this is often a shared concern with the transferee.

6.2. The fiche obligation (281.45).

An important and often forgotten element is the sheet 281.45. For all copyright income, the debtor must prepare an individual sheet annually in the name of the assignee.

This sheet lists the gross amount and withholding tax withheld.
If the fiche is not filed or is filed late, the company risks the assessment of undisclosed commissions (a tax of 100% on the unaccounted expenses), although the tax authorities show some tolerance here if the transferee did properly declare the income.

6.3. Personal income tax return

The transferee must include the income in his personal income tax return (Part 1, Box VII, Section D).

This is where the gross amount is listed and the withholding tax withheld.
Cost forfits are calculated automatically by the tax authorities, but one may also choose to prove actual costs (which is rarely more advantageous).
Globalization: In principle, the withholding tax of 15% is discharging. However, one may choose to “globalize” the income with the other income if this is more advantageous (e.g., with low total income), but generally the separate valuation at 15% is most interesting.

Part VII: Sector analysis and ruling practice (2023-2025)

The theory is clear, but practice is recalcitrant. The OAR's recent decisions provide direction on how the law is applied by sector.

7.1. IT and Software

As discussed, pure coding is excluded.

Nuance: The OAR does still accept copyrights for IT profiles who do not program but do create. Think Web designers (graphic design, UI/UX), Functional Analysts (who create diagrams and documentation), and manual writers.
Split: For mixed profiles (e.g., a developer who also does design), the OAR requires a strict split. Only the time spent on “Title 5 tasks” (literary/art) counts toward the calculation of compensation. In practice, this often leads to very low percentages.

7.2. Marketing and Advertising

This sector remains largely unaffected. Marketers, copywriters, strategists and graphic designers create works that clearly fall under “literature and art”.

Ruling practice: The OAR smoothly delivers positive decisions here. Creativity rates vary, but a fee based on 25% to 40% of time spent on creation is often accepted. Importantly, the works (campaigns, websites, leaflets) are intended for a wide audience, leaving the second gateway (public communication) wide open.

7.3. Architects

Architects feared for their status because a building plan for a private residence is not “public”.

Solution: The OAR and legal doctrine confirm that reproduction is a valid alternative criterion. The plan is reproduced on site, with the contractor, and on file. Moreover, architects are increasingly using 3D renders and artistic impressions that do reach an audience (website, portfolio). The ruling practice here remains positive, provided fees remain proportional (often capped based on turnover).

7.4. Lawyers

After the 2023 positive Court of Cassation ruling, there is hope for lawyers.

Prerequisite: It must not be standard letters or mere litigation documents. There must be “scientific” or “creative” work (conclusions with an original structure, lectures, articles). The OAR remains strict in the evidence: the lawyer must show that his work has originality and is not a mere technical application of the law.

Part VIII: Anti-abuse and social security.

In addition to the tax authorities, the NSSO (National Social Security Office) is also watching.

8.1. The social security trap

In the past, there was debate whether copyrights were wages on which social security contributions were due. A Court of Cassation ruling (Sept. 15, 2014) held that copyrights in exchange for labor were wages.

To provide legal certainty, article 22ter was introduced in the NSSO law (and amended in 2022). This article states that copyright royalties are exempt from social security contributions, provided that:

They are classified as movable income in personal income tax (i.e., meet all tax conditions).
The compensation does not exceed 30% of the total sum of wages + royalties.This creates a parallel between the tax and social regime. Do you exceed the fiscal 30% limit? Then you pay on the excess not only progressive taxes but also social contributions (approx. 25% employee + employer).

8.2. Tax abuse (Art. 344 ITA92)

The general anti-abuse provision lurks around the corner. Payroll conversion, in particular, is a blinking light for the tax authorities. It is illegal to reduce an employee's or manager's gross salary in order to replace that portion with copyrights. Copyrights must be an addition, or granted as part of an optimization of a pay raise.

There is also the specific anti-abuse provision of Article 344 §2 ITA92 (sale of rights to a foreign company in a tax haven), which has been explicitly declared applicable to copyrights since 2022.

FAQ: Frequently Asked Questions

Does the 30% rule also apply if I sell my copyrights to a third party with whom I have no other connection?

No. The 30% rule (the first limit) only applies when the transfer of rights is accompanied by services rendered (as in the case of an employee or director). If you write a book and sell the rights to a publisher with whom you have no other connection, this restriction does not apply (you do fall under the absolute cap of approximately EUR 73,000).

As an IT consultant, can I still do anything with copyrights?

For writing computer code: no. This is explicitly excluded. However, if your work also includes writing courses, white papers, designing graphical interfaces or creating marketing materials, that particular part of your work may still qualify. A strict breakdown in your contract and billing is then necessary.

3. What happens if I exceed the limit of EUR 37,500 (indexed > EUR 75,360)?

Excess in current year: The portion above the limit is taxed as professional income. The portion below it remains movable (15%).
Exceeding the average of the previous 4 years: You lose the right to the regime completely. Everything is taxed as professional income, starting from the first euro.

Conclusion

Copyright reform is a reality. The landscape has been transformed from a sprawl to a tightly regulated garden. However, for those who follow the rules, it remains one of the most attractive tax regimes in Europe. The combination of a 15% rate, a generous expense deduction and an exemption from social security contributions is unparalleled.

But the warning is clear: automatism kills. Anyone who assigns copyrights today without thorough analysis, without a watertight contract and without the proper distribution keys is playing Russian roulette with the tax authorities. The exclusion of software, the strict limit amounts and the increased burden of proof require a professional approach.

Is your case future-proof?

Do you doubt whether your current arrangement stands the test of the new law and recent ruling practice? Are you in IT, marketing or consulting and looking for a legally secure way to valorize your intellectual property?

Our attorneys, specializing in the niche of tax law and intellectual property, guide you through this complex maze. We analyze your work, calculate your exact space within the limit amounts and draft the necessary contracts.