Is a mere publication of a tax regulation on a website legally valid?

1. Legal basis

The legally valid publication of a tax regulation is necessary to be enforceable against taxpayers. The assessment established on the basis of regulations that have not been validly published, is void. 

This requirement stems from the Constitution which stipulates, among other things, that no law, decision or regulation of general, provincial or municipal government is binding except after being published in the form determined by the law.

The form in which a tax regulation must be published is regulated by the Local Government Decree and the Flemish Government Decree of 20 April 2018 (amended by the Flemish Government Decree of 28 April 2023). 

The content of municipal council regulations and ordinances must be published on the municipal web application. This publication must be made within ten days of the regulations and ordinances being adopted. It is important to mention the date they are published on the web application and the date they were adopted.

The publication and the date of publication of the regulations must appear from the entry in a register of announcements, which must be kept as stipulated in the Decree of the Flemish Government of 20 April 2018.

2. There is ambiguity regarding the scope of recent case law of the highest courts

In the case submitted to the Antwerp Court of First Instance, it was established that the publication of the tax regulations via the municipality's web application and the date of such publication via this web application did not appear from an entry in the register of announcements.

The taxpayer in question argued that such an entry in the register of announcements could be considered as the sole means of proof and referred to the judgments of the Constitutional Court in this regard. 

For its part, the municipality referred to a judgment of the Supreme Court to argue that, in the absence of the entry in the register of announcements, the actual publication on the municipal website can also be proved by other evidence. Specifically, it referred to an IT proof showing conclusively when the tax regulations were actually uploaded on the website (log file).

In the first instance, the Antwerp Court agreed with the municipality's position. Furthermore, according to the Antwerp Court, it appears from the judgments of the Constitutional Court that the Court only ruled that the relevant articles of the Local Government Decree do not violate the Constitution if it is inferred from them that the entry in the register kept especially for that purpose is the only admissible method of proof for the publication of a municipal tax regulation. Thus, according to the Antwerp Court, it cannot be inferred from these judgments that the interpretation that proof of publication can also be provided by other means of proof would be unlawful. After all, the Court did not rule on that.

The question of whether the Court is correct in doing so is beyond the scope of this discussion. This will be discussed further in a later contribution. 

However, if it is accepted that proof of actual publication can be provided by other evidence, such evidence will in any case have to comply with the transparency obligation. This implies that the taxpayer must be able to establish in a straightforward manner that the tax regulations were validly published. This was already found not to be the case in this case.

3. The Antwerp Court recognises the limitations inherent in the use of a web application

The importance of this judgment lies in the assessment of the alternative evidence brought by the municipality, consisting of, among other things, a printout of the municipal website and the form of electronic transmission to the supervising authority.

In its assessment, the Court correctly states that these documents do not conclusively show when the tax regulations in question were actually uploaded to the municipality's website and posted online.

For the sake of completeness, attention is also drawn to the fact that the Decree of 20 April 2018 was recently amended, as a result of which a local authority can now autonomously decide which system to use as a register to create certainty about the correct timing of the digital publication of regulations and ordinances on its web application. Local councils can use logged data from existing IT systems as the register, but they can also opt to keep the current method, i.e. a manually or digitally held register.

First, the question can be raised whether the new definition of what can be considered a register according to the Decree of 20 April 2018 is in line with what is stipulated in the Decree on Local Government. In addition, recent amendments to a Flemish Decree cannot be applied to a tax regulation concerning the assessment year 2020. 

Without ruling on these elements, the Antwerp Court ruled that, in any event, the evidence submitted by the municipality cannot be considered a system as meant by the new version of the Flemish Decree of 20 April 2018 either. In any case, the municipality did not publish a description of how the system works on its website. 

In other words, even taking into account the amended Flemish Decree of 20 April 2018, there is no legally valid publication of the tax regulations.

4. Critical analysis of the publication remains a must

With this judgment, the Antwerp Court confirms that the burden of proof regarding the legally valid publication of a tax regulation should not be taken lightly. 

In the event of a dispute regarding the application of a tax regulation, it will therefore always be up to the local authority to provide proof of a lawful publication. In the absence of (an entry in) a register of announcements, this proof must conclusively (and without any possibility of manipulation) show when the tax regulation in question was actually uploaded to the municipal website and placed online.

Would you like to be assisted by the Seeds of Law specialists or receive more information on this matter? Please do not hesitate to contact us at +32 (0)2 747 40 07 or at info@seeds.law.