The starting point of the objection period in tax cases

The tax landscape is often complex and the procedures to be followed are strict. One of the most crucial aspects a taxpayer may face is the time limit to contest an assessment. In this contribution, we take a closer look at the starting point of the objection period in tax cases.

The importance of a timely tax appeal

When you disagree with a tax established by the administration, the first step in the procedure is to file a notice of appeal. This administrative appeal is not a mere formality; it is a mandatory preliminary step before a dispute can be brought before the court of first instance. Thus, article 1385undecies, first paragraph, of the Judicial Code (hereinafter Ger.W.) that no legal action can be brought against the tax administration without first filing an administrative appeal. For direct taxes, such as personal or corporate income tax, this procedure is governed by Articles 366 to 376quinquies of the Income Tax Code 1992. (hereinafter WIB92).

The correct calculation of the deadline to file this objection, and more specifically the determination of the starting point of this deadline, is often a source of discussion in practice.

The objection period: how long do you have?

Federal taxes: an evolution toward more time

At the federal level, the objection period has undergone quite an evolution. The law of March 15, 1999 had shortened the period for filing an objection to three months from the date of sending the assessment notice or notice of assessment. This short period applied as of assessment year 1999.

However, the law of July 20, 2006 reduced this period to six months, a regulation that took effect on Aug. 1, 2006.

The law of November 20, 2022 significantly extended the objection period to one year. This new one-year period applies since Jan. 1, 2023. Specifically, this means:

  • For all assessment notices sent from Jan. 1, 2023, the one-year deadline applies.
  • If the former six-month term had not expired by Jan. 1, 2023, it was also replaced by the new, longer one-year term.

Regional and local taxes: a tangle of deadlines

For taxes levied by regions, provinces or municipalities, different rules sometimes apply. Thus, it is essential to consult the specific regulations for the tax in question and the competent administration.

The question of exactly when the objection period begins is crucial to the admissibility of your objection, especially if you dispute having received the assessment notice (in a timely manner).

How exactly is the objection period calculated?

The calculation of the objection period follows the general rules of the Judicial Code, particularly Articles 52 and 53.

  • The period is counted from midnight to midnight and includes all days, including Saturdays, Sundays and legal holidays (article 52, second paragraph Ger.W.).
  • Since the term is expressed in months, it is calculated from the umpteenth day of a month to the day before the umpteenth day of the following month (article 54 of the Judicial Code). The due date itself is included in the term.
  • Important is article 53, first paragraph Ger.W.: if the due date is a Saturday, Sunday or legal holiday, the deadline is extended to the next working day.

An example to clarify: Suppose an assessment notice is sent on Friday, February 28, 2025. If the term starts on the third business day after mailing (as in Flanders and Brussels for local taxes), that third business day is Wednesday, March 5, 2025. As of that day, the three-month period begins to run.

The starting point of the objection period: crucial to admissibility

Previous regulation and reversal by the Constitutional Court

Before a change in the law in 2010, and since assessment year 1999, article 371 CIR92 stipulated that the objection period began to run from the date of shipment of the assessment notice or notice of assessment. The effective date of receipt by the taxpayer was not a factor.

This arrangement came under fire. In his judgment no. 162/2007 of December 19, 2007 the Constitutional Court ruled that this system was discriminatory. The Court stated that an objection period starting on the date of mailing constituted a disproportionate infringement of the rights of defense, as taxpayers risked losing their right to object even before they had had the opportunity to take cognizance of the assessment. The Court recognized that the legislature may set an objective starting point for time limits in order to avoid legal uncertainty, but suggested an alternative that took more account of the addressee's position: "The objective of avoiding legal uncertainty could just as easily be achieved if the time limit were to commence on the day on which the addressee, in all probability, was able to take cognizance of it, that is, the third working day following that on which the assessment notice was delivered to the postal services, unless the addressee proves otherwise (Article 53bis of the Judicial Code)." (paragraph B.4 of the judgment). In doing so, the Court referred to the so-called theory of reception, as included in article 53bis, 2° Ger.W., and stated that a procedural period can only begin to run from the moment the addressee is deemed to have received the administrative document.

Current legal regulation: theory of reception enshrined

Following this ruling, the legislator amended article 371 ITC92 through the law of May 19, 2010. Since then, the objection period starts "counting from the third working day following the date of sending of the assessment notice ". The "date of mailing" is hereby the date mentioned on the assessment notice itself. This change aimed to bring the tax procedure in line with the principles set out by the Constitutional Court, while maintaining a certain legal certainty for the administration.

But what if you don't receive the assessment notice (on time)? The burden of proof

Despite this adjustment, discussions remain in practice, mainly around proof of mailing of the assessment notice and the taxpayer's ability to rebut legal presumptions. Indeed, Article 371 WIB92, in its current form, relies on a double legal presumption:

  1. Suspicion of shipment: The assessment notice is deemed to have been effectively sent on the date indicated on the document itself.
  2. Presumption of receipt: The taxpayer is deemed to have received the assessment notice within three business days of the (presumed) mailing date.

Case law shows that it is not easy for a taxpayer to rebut these presumptions. Thus, in a judgment dated February 6, 2018, the Brussels Court of Appeals ruled that the mere assertion of not having received the assessment notice is insufficient to rebut the presumption of sending and receipt. However, specific circumstances, such as a change of address of which the administration was not (yet) aware, an error in the address, a postal strike, or confusion with another addressee, can be accepted as elements that make the non-delivery plausible. In other cases, and especially when the taxpayer does not dispute receipt per se but argues that he received the assessment notice late, the burden of proof is often difficult.

A subtle but important difference with the suggestion of the Constitutional Court is that the legislator has taken as the reference point the date of mailing mentioned on the assessment notice, and not the date on which the letter was handed over to the postal services (as in article 53bis Ger.W.). This gives the administration some control over the start of the deadline.

Recent case law confirms: no proof of mailing, no start of deadline

An interesting judgment in this regard is that of the Antwerp Court of Appeals dated Sept. 10, 2024. The case concerned a municipal tax on pylons and masts for the assessment years 2016 to 2019. The taxpayer had filed an initial declaration, which was later amended at the request of the municipality. After disagreement over a seventh pylon, the municipality proceeded to assess on April 26, 2019, and sent the assessment notices on April 30, 2019. However, the taxpayer maintained that he never received the assessment notices and only became aware of the assessments through a demand for payment dated March 9, 2020. The appeal was filed on May 15, 2020, but rejected by the municipality as late.

For the court, the crucial question was whether the objection was admissible, which depended on the starting point of the objection period.

Proof of mailing of assessment bills.

The court recalled that the date of mailing on the assessment notice does enjoy a (rebuttable) presumption of correctness. The Supreme Court already ruled on January 7, 1993, that the period for objection begins to run from the day after the effective mailing of the assessment notice, provided that this mailing was duly made. Barring evidence to the contrary, this is the date indicated on the assessment notice. Since January 1, 1978, registered mailing of assessment notices is no longer mandatory, even for higher amounts; this formality is no longer considered substantial.

Crucial in the Antwerp case: the taxpayer claimed never to have received the assessment notices. According to the court, this dispute was sufficient to reverse the presumption of mailing. This placed the burden of proof on the municipality to prove that the assessment notices had been effectively and regularly sent. In order to do so, the administration must provide adequate proof. In the absence of proof of registered mail or other conclusive evidence of effective mailing, the court held that the objection period had not begun to run on April 30, 2019 (the mailing date according to the municipality).

Determining the starting point of the objection period

The court followed the case law which states that, in case of doubt about the mailing of an assessment notice, the objection period only starts at the moment the taxpayer effectively learns of the existence of the assessment. In this particular case, the court held that the first effective knowledge occurred upon receipt of the demand for payment on March 9, 2020. Consequently, the appeal dated May 15, 2020 was considered timely and thus admissible.

The impact of these evolutions for you as a taxpayer

The judgment of the Antwerp Court of Appeals is an important confirmation that tax administration (both the FPS Finance as local governments) must be able to demonstrate the effective and regular mailing of assessment notices, especially when you, as the taxpayer, dispute their receipt with justification. This jurisdiction strengthens your rights and provides safeguards against possible shipment irregularities. It raises the bar for administrations in terms of their dispatch procedures and proof of them. For you as a taxpayer, this creates additional leeway if you do not receive an assessment notice or receive it late. This evolution contributes to a better balance between tax obligations and the fundamental rights of taxpayers, and underlines the importance of transparency and rigor in tax procedures.

Conclusion: the objection period, a complex issue where expert assistance pays off

The determination of the correct starting point of the objection period in tax cases has evolved over the years, with an increasing focus on the taxpayer's rights of defense. The ruling of the Constitutional Court in 2007 was a turning point in this, followed by the 2010 legislative amendment that enshrined the theory of receipt in Article 371 WIB92. In principle, the objection period now starts on the third business day following the date of mailing stated on the assessment notice.

Nevertheless, as recent case law demonstrates, points of debate remain, mainly regarding the burden of proof of dispatch. If there is reasonable doubt about the (regular) dispatch, and the administration cannot provide conclusive proof of this, the objection period can only start from the moment you have actually taken cognizance of the assessment.

The question of whether the current legal regime and administrative practice strike a complete balance between the collection of taxes and the protection of your rights as a taxpayer (legal certainty, principle of equality, rights of defense) remains topical. A rigorous approach and transparency in the administration's evidence are indispensable here.

Correctly interpreting deadlines and gathering the right arguments and supporting documents is crucial to safeguarding your rights. After all, a late objection is, in principle, inadmissible. Given the complexity of the matter and the potentially large financial consequences, it is advisable to seek timely assistance from a specialized lawyer in tax law. Our firm has extensive expertise in tax law and tax litigation and is happy to assist you in defending your best interests. Please do not hesitate to contact us for tailored advice.

You want to object to an assessment notice and have questions about objection deadlines? Contact our attorneys.

Contact

Questions? Need advice?
Contact Attorney Joris Deene.

Phone: 09/280.20.68
E-mail: joris.deene@everest-law.be

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