Securing the copyright regime for your developers

The copyright tax regime has been reopened for developers and IT consultants as from 1 January 2026, but the tax authorities keep a close eye on how it’s applied. Here’s how to document and secure the arrangement, up to obtaining a ruling.

A reinstated regime, but not a given

Software had been excluded from the regime’s scope since the Program Law of 26 December 2022, before being brought back in by the Law of 15 July 2026 reforming personal income tax, for income paid or granted as from 1 January 2026. That return to scope doesn’t waive any of the legal conditions though: originality of the work created, contractual assignment or licensing of the rights to a third party that exploits the work, and compliance with the applicable limits. It is the fulfilment of these conditions, together with their proper documentation, that determines whether the regime can genuinely apply in a given situation.

An attractive regime, but one the tax authorities watch closely

Practice shows that applying the copyright regime regularly raises questions from the tax authorities, even for creative professions that have benefited from it for longer than IT has. A regime this favourable (a 15% rate against a marginal rate up to (~)53.5% for professional income) naturally draws attention in an audit. Getting the setup right and properly documented from the outset is therefore essential.

The evidence file to put together

In practice, eligibility for the regime needs to be demonstrated through a complete file:

• the copyright assignment or license agreements
• the evidence showing the originality of the creations (code, an application, a module or a script constituting the author’s own intellectual creation)
• proof of their exploitation by the assignee or, failing that, of their dissemination or communication to the public
• a description of the activities carried out by the employee
• any documentation that can justify applying the regime in the event of an audit

This documentation work can’t be improvised after the fact. The assignment of rights has to be set out contractually upfront, and evidence of originality gathered upfront and as you go rather than reconstructed retrospectively in case of an audit.

Applying for a ruling: securing your position for several years

To provide legal certainty, you can file a request for a ruling with the Ruling Commission (Service des Décisions Anticipées / Dienst Voorafgaande Beslissingen, SDA/DVB). We can assist you throughout the entire process from the preliminary eligibility review and prefiling phase to the formal submission of the ruling request, as well as all communications with the Ruling Commission, to the handling of any requests for additional information and follow-up until the ruling is obtained.

A favourable ruling provides upfront confirmation of the intended tax treatment, and secures the position for both the company and the employees concerned for the whole validity period of the ruling. Peace of mind for both parties, rather than uncertainty pushed down the road to the next audit. Want to secure this application for your developers or IT consultants? We can support you, from the preliminary audit up to obtaining a ruling.

FAQ

Why do the tax authorities pay particular attention to this regime?

Because the tax gap it allows for (15% against a (~)53.5% marginal rate for professional income) is significant. An application that’s poorly documented or poorly grounded in law is therefore more exposed to an audit and a requalification.

What should the evidence file contain?

The copyright assignment or licensing agreements, the evidence showing the originality of the works created, proof of their exploitation or dissemination, a description of the activities carried out, and more generally, any documentation supporting the application of the regime.

What is a ruling, and why apply for one?

A tax ruling is an upfront confirmation obtained from the Ruling Commission on the tax treatment applicable to a specific situation. It secures the position for both the company and the employees applying the regime throughout the ruling’s validity period.

How long does a ruling remain valid?

In practice, tax rulings are generally granted for a period of three to five years, subject to the terms and conditions specified by the Ruling Commission in its decision.

What’s the risk for a company that applies the regime without a supporting file?

Preparing a comprehensive supporting documentation file during the eligibility assessment phase allows to proactively document compliance with all legal conditions required for the application of the regime. This significantly reduces the risk of applying the regime on the basis of an incomplete or insufficiently substantiated analysis. Without a complete file (assignment agreements, evidence of originality, proof of exploitation or dissemination, a description of the activities), it may be difficult to justify the tax treatment applied during a tax audit and may lead to significant financial consequences for both the company (due to insufficient withholding tax and unpaid social security contributions, notably employer social security contributions (currently approximately 27.5%)) and the individual concerned (additional income tax to be paid and eventual tax increases).