Objection period: the administrative circular does not respect the guidelines of the Court of Cassation

On September 4th 2015 the Court of Cassation has permanently settled the controversy surrounding the admissibility of objections submitted based on the previous version of article 371 CIR92. With this arrest the Court had clearly stated, taking into account its unconstitutionality, that article 371 CIR could not have validly permitted the beginning of the objection periods for all tax returns (TR) that were send before its modification by the law of May 19th 2010.

Per memoria, the Constitutional Court had decided, by means of its arrest of December 19th 2007, that article 371 CIR, as in force before its modification in May 2010, limited the taxpayer’s rights of defence in a disproportionate way as it provided that the period to submit an objection only begun as from the date of dispatch mentioned on the TR.

The administration has reacted to this arrest by means of the publication of a circular 704.063 of February 3rd 2016. With this circular the administration tried to interpret the jurisprudence of the Court of Cassation as the theory called “theory of receipt”.
According to this theory and when the objection periods can not begin on the date of dispatch of the TR, the period starts on the day on which the taxpayer has certainly taken note of it.

The court of first instance of Brussels has just condemned this analysis. The court considers that it is not correct to say that the Court of Cassation has intended to validate this theory: “on the one hand the text of article 371 CIR92 refers to the dispatch of the TR as starting point for the presumed dispatch period; on the other hand the necessity to consider the dispatch (and not the receipt) of the TR as relevant legal fact, confirmed by the jurisprudence that states that it is not enough for the taxpayer to dispute the receipt of that TR; finally the arrest of the Constitutional Court of December 19th 2007 does not modify the interpretation of article 371 CIR92 in any way whatsoever: by carefully correcting the calculation of a certain period as from the dispatch and without disavowing a legal presumption, the Constitutional Court confirms this period by refining it”.

With that same circular the administration also considered that with regard to the TR that were send after the entering into force of article 53bis of the Judicial Code, the date of receipt could be presumed on the basis of this article. The court also excluded this hypothesis.

Moreover, in a previous arrest of November 23rd 2012 the Court had already settled this issue:
“The professional judges have been able to decide, without violating the provisions that are mentioned by the legal remedy, that in the absence of any legal initiative following the jurisprudence of the Constitutional Court, the starting date can not be replace by any other date, so that the disputed objection must be considered as having been submitted in due time” (cass. Nov.23rd 2012, F.11.0050.N/1, www.monKEY.be, n°. C 12/0906).

So the decision of the court of first instance of Brussels ties perfectly in with the elaborate jurisprudence dedicated to this issue.
The result is that this circular – that has of course no legal value whatsoever – does not need to be applied and that an objection that has been submitted before the modification of article 371 CIR92 must be declared admissible.