2023-10-06 01:56:50
October 6, 2023 Today at 03:55
A first ruling has just been adopted in terms of copyright, reducing the IT sector’s hopes of still benefiting from this favorable tax regime.
The advance rulings service in tax matters of the FPS Finances has just taken on October 3 a first decision in matters of copyright which diminishes the IT sector’s hopes of still benefiting from this favorable regimelearns L’Echo.
Much has already been written about the reform of the copyright tax regime. Once the decision in principle to reduce the scope of this regime is taken in a budgetary conclave, in October 2022, the companies in the IT sector stepped up to denounce their exclusion from the systemwhich they have taken advantage of for years to offer software designers attractive salary conditions.
The The political world was then very agitated around the final version of the text. Initially, Finance Minister Vincent Van Peteghem (CD&V) wanted to reserve the system for only “real” artists and journalists. The MR had prided itself on having obtained relaxations which meant that no profession was excluded from the legislation.
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“It is a decision that is both very predictable and very disappointing. The argument is very weak from a legal point of view.”
Sébastien Watelet
Tax lawyer at LawTax
A negative ruling
But the Minister of Finance had nevertheless warned that the scope of application would henceforth be interpreted more strictly than with the old law. And the decision just made by the advance decisions service (SDA) goes in this direction.
The request came from a company active in computer engineering, specialized in anti-financial fraud solutions. She believed that 5 profiles, within its staff, are creative functionswho produce works to which the copyright remuneration regime could apply.
A interpretation that the SDA rejects, referring to parliamentary documents relating to the new law. Even if computer programs are considered literary works under article XI.294 of the Code of Economic Law, the company was unable to demonstrate that they met the criteria of original literary or artistic works referred to in article XI.165 of the same Code, notes the advance rulings service. The new copyright regime cannot therefore be applied here, concludes the ruling service.
“It’s a decision both very predictable and very disappointing, comments Sébastien Watelet, tax lawyer at LawTax. The argument is very weak from a legal point of view, and does not even emerge from the tax text itself. For me, computer programs are literary works in the strict sense, not assimilated works.”
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A possible weapon
Even if this first ruling may appear negative for the IT sector, it could be used to continue the fight. “A circular had been announced, but never came out,” explains tax lawyer Mathieu Possoz. “No doubt the company that made the request wanted to obtain a negative decision for challenge the ruling before the courts and tribunalswithout waiting for the judgment of the Constitutional Court, which has also been seized.”
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