12 März 2025 Joakim-Antoine Charvet  -  Danièle Buchler  -  Cyrielle Nis  -  Adrien Piron  -  Delphine Martel  - Sarah Blandin Tax

Tribunal overturns Director's decision on tax claim periods for migrated companies

On 22 January 2025, the Luxembourg Administrative Tribunal overturned the Director's decision that had declared inadmissible ratione temporis a claim from a formerly Luxembourg resident company against a tax assessment received at its previous registered office in Belgium.

Context :

A Luxembourg company (the “Company”) relocated its registered office from Luxembourg to Belgium. The decisions regarding the transfer and the radiation of the Company were published in the Luxembourg trade register. A few months later, the Company transferred its registered office again, this time within Belgium. This second relocation was published in the Belgian trade register. 

After the Company’s second transfer of registered office, the Administration des Contributions Directes (i.e., the Luxembourg direct tax authorities or “ACD”) sent various communications to the Company’s first Belgian registered office, concerning the Company’s 2016 corporate income tax and municipal business tax returns. These communications remained unanswered, until a payment order was served to the Company at its new Belgian registered office. 

Within this context, the Company filed a complaint with the director of the ACD (the “Director”) against the 2016 tax assessments and the thereto related late payment interest. The Director dismissed the complaint as inadmissible ratione temporis, arguing it was submitted after the three-month period following the notification of the tax assessment has expired. In the decision, the Director maintained that the ACD had validly notified the Company of the tax assessments, and the Company failed to respond within the required three-month period, without proving it did not receive the notification. Additionally, the Director indicated that the Company did not update the ACD regarding its new postal address after relocating its registered office. 

The Company contested the inadmissibility of its claim, arguing that it never received the tax assessments and subsequent communications from the ACD. The absence of notification of the tax assessments prevented the period to file a claim from starting. 

The core issue in the dispute is whether the Company filed its claim within the legal timeframe. The Administrative Tribunal addressed two related questions: the mechanism for starting the claim period without notification of the tax assessment to the taxpayer, and the taxpayer’s responsibility to inform the ACD of its change of registered office.

What you need to know: 

At the outset, the Luxembourg Administrative Tribunal reminded the following principles: 

  • Taxpayers can bring a claim against a tax assessment to the Director within three months following its notification.
  • For legal entities, such notification must occur at the Company’s registered office, as this is the primary geographical location for a company, with statutory mention and trade register publication of its address.
  • Notification is deemed to occur by the third business day after being posted, unless proven otherwise.

If the taxpayer did not receive notification of the tax assessment (for instance, if the tax assessment is sent to the Company's former registered office after it has changed), the three-month claim period does not commence. Regarding this, the Administrative Tribunal ruled that:

  • The burden a proof concerning the date of the notification typically lies with the taxpayer.
  • Taxpayers who deny receiving a tax assessment are not required to produce the original notice to contest their notification. Instead, they must present circumstances showing that they were not notified of the contentious notices, using the “body of evidence” method.
  • In the case at hand, the taxpayer demonstrated consistent circumstances indicating that it never received the tax assessments, since they were sent to an outdated address. 

Legal entities do not have obligations to notify the ACD about changes to their registered office. In this context, the Administrative Tribunal held that:

  • The case law invoked by the délégué du gouvernement, which imposes an obligation on taxpayers to inform the ACD of their change of registered office, applies to individuals only. Given that legal entities have publication obligations concerning their registered office address, they are not required to notify the ACD of any address change.
  • No law obliges a company that has relocated its headquarters abroad to personally inform the ACD of any subsequent transfers.

In conclusion, the Luxembourg Administrative Tribunal determined that since the ACD did not correctly carry out the notification of the tax assessment, the three-month period to file a claim did not start running. It concluded that the claim was wrongly declared inadmissible ratione temporis by the Director and favoured the appeal, ordering its admissibility and referring the case back to the Director.