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Withholding tax reclaims: Important
developments in Belgium for UCITS
SICAVs
In the past year, some developments occurred regarding the withholding
tax reclaims (based on Fokus / Aberdeen / Santander EU case-laws) filed by
UCITS SICAVs in Belgium. As the Belgian tax authorities have started to
analyse the filed Fokus Bank claims and to refund some of them, the
chances of success of these claims have increased in Belgium.
24 October 2014
Chances of success
In the past year, there have been two important developments regarding the Fokus
Bank claims filed by UCITS SICAVs in Belgium:
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The Belgian Tax Authorities (“BTA”) issued several official decisions of
reimbursement for funds which have been assisted by PwC;
The BTA have also started to send to taxpayers with pending claim(s) in
Belgium requests for information in which they requested the
completion/provision of several certificates.
These developments indicate that BTA are willing to grant a refund of the Withholding
Tax (“WHT”) to UCITS SICAVs which have introduced claims in the past.
In addition, thanks to these developments and the additional requests of the BTA, a
large and clear overview was built on the information which needs to be provided in
view of being reimbursed. If all the requested documents/information are submitted to
the BTA, chances of success for UCITS SICAVs to obtain a refund in Belgium are now
estimated to be very high.
Statute of limitations
In principle, Fokus claims can be filed in Belgium based on a five-year statute of
limitations starting the 1 January of the year during which the WHT was suffered. This
is also confirmed in the Belgian tax law as from 1 January 2011.
For WHT suffered on dividends received before 1 January 2011, generally a five-year
statute of limitations was applied by PwC although there is a very limited risk that the
BTA considered that the statute of limitations only amounted to 6 months. Besides,
certain market players have also applied a ten-year statute of limitations (for dividends
received prior to 1 January 2011) but PwC estimate that the chances of success of this
ten-year statute of limitations are quite limited (30% of success).
Indeed, since the BTA have issued a circular letter which suggests that the five-year
statute of limitations would be applicable (also for the WHT suffered on dividends
received before 1 January 2011), it means that the Fokus claims could be filed before
year-end for dividends received as from 1 January 2010.
End of discrimination as from assessment year 2014
Following the condemnation of Belgium in the ECJ judgment of 25 October 2012 and
the Act of 30 July 2013, Belgian funds now also suffer the WHT on Belgian dividends.
This new regime applies as from tax year 2014 meaning that in principle foreign
investment funds should not be able to get a refund of the WHT suffered on dividends
received in 2013.
However, there is still a possibility for a foreign fund to claim a refund for WHT
suffered in 2013 if the accounting year of the fund is not based on a calendar year. On
that basis, good arguments could be raised to introduce claims in Belgium for 2013. In
this respect, the chances of success to get reimbursement of WHT paid in Belgium are
considered as high (more than 70% of success).
PwC Belgium
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Olivier Hermand
Partner
+32 2 7104416
[email protected]
Patrice Delacroix
Partner
+32 2 7107401
[email protected]
Edouard d'Oreye de Lantremange
Senior Manager
+32 2 7104076
[email protected]
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PwC Luxembourg
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Laurent de La Mettrie
Partner
+352 49 48 48 3007
[email protected]
Oliver Weber
Partner
+352 49 48 48 3175
[email protected]
Sidonie Braud
Director
+352 49 48 48 5469
[email protected]
Héloïse Bailleux
Senior Manager
+352 49 48 48 3280
[email protected]
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