AGEFI Luxembourg - septembre 2025

Septembre 2025 41 AGEFI Luxembourg Droit / Emploi O n 9 July 2025, the Luxembourg administrative Tribunal ( Tribunal administratif, 9 juillet 2025, n° 49156 ) (the “Administrative Tribunal” or the “Tribunal”) took position onwhether a request filed by a taxpayer to theDirector of the Luxembourg direct tax authorities (“LTA”) should qualify as an admin- istrative claim ( réclamation – as per § 228 of the General Tax Law (Abgabenordnung, “AO”)) or as a rectification ( demande de redressement – as per § 94AO ). This deci- sion clarifies the formal requirements that the former must meet to be recognized as such and, if challenged, to grant the taxpayer the right to appeal before the Tribunal. Summary of the case On 14 July 2021, provisional tax assessments (1) (issued based on §100aAO) for financial year 2019 were issued by the LTA and sent to the taxpayer. However, upon receipt, the taxpayer reached out to the tax office to inform it that it had realized that the annual accounts on the basis of which its 2019 tax return had been prepared did not accurately reflect the economic reality. In a letter dated 24 August 2021 (the “ 2021 letter ”), the taxpayer there- fore informed the tax office that it would file a new set of accounts shortly and that an amended tax return for 2019 would be prepared accordingly. The revised form 500 was submitted on 11 November 2021; however, it was not accepted by the tax office, due to late filing. In an email dated 1 December 2021, the taxpayer contested the decision, asserting that the tax office had been informed since August of that year that the annual accounts for financial year 2019 were incorrect – and consequently, sowas the tax return – and that it intended to adjust both documents. Being given the same negative answer as before, the taxpayer filed a formal hierarchical appeal (which, although not specified, we assume was unsuccessful) and later lodged an appeal with the Administrative Tribunal. Decision of the Tribunal The judges did not directly address themain point of contention between the taxpayer and the LTA, namelywhether the revised returnfiled by the for- mer should be accepted by the LTAor not. Instead, the Administrative Tribunal focused on the pre- liminary issue concerning its jurisdiction to resolve the dispute. In this context, the judges emphasized that, per the combined provisions of § 228 AO and Article 8(3), point 1 of the lawof 7November 1996, a taxpayer is entitled to appeal to the Tribunal only after review anddecision fromtheDirector of theLTAregarding a claimrelated to tax assessments as per established case law (2) . Thus, the taxpayer argued that anadmin- istrative claim as per § 228AO had effectively been filed on 26 August 2021. In contrast, the LTA con- tended that the 2021 letter should insteadqualify as a rectification as defined by §94AO. TheAdministrativeTribunalmadea cleardistinction between the two procedures, which lies in the objec- tive they respectivelypursue. Inprinciple, an admin- istrative claim is meant for a taxpayer to request the revisionof its tax situation in its entiretywhile a recti- fication is a legal remedy which should be relied on to address a specific andprecise taxation issue. In line with the consistent position upheld by the administrative jurisdictions, theTribunal reaffirmed that §249 AO (3) should be interpreted as imposing onlyminimal formal requirements.However, it also clarified that, even though minimal, these require- ments should not be overlooked. Regardless of any specific formalities being required for this purpose, legally or in practice, the Administrative Tribunal underscored that the taxpayer should act diligently when formulating its request, toensure that the indi- vidual or body which receives it may actually be in apositiontoaccuratelyclassifyitasanadministrative claim or as a rectification and (in the case of the administrative claim) subsequently refer it appro- priately to the Director. In that regard, the request should indicate: -Thepersonorthebodytowhomitisaddressed(i.e., to the taxoffice for a rectificationor to theDirector for an administrative claim); - That the taxpayer does not agree with the tax treat- ment applied by the tax office and that it is therefore requesting a reassessment of its tax situation. The judges further emphasized that it shouldbeup to the taxpayer to make it clear whether it requests the reviewofitsentiretaxsituation(foranadministrative claim) or only a specific aspect (for a rectification), keeping inmind that the former option couldpoten- tiallyleadtoareassessmentthatisdetrimentaltothem (i.e., in pejus reassessment). This last point could explain why the Tribunal immediately added that, in case of doubt, there shouldbe nopresumption that the taxpayer intend- ed to file a claim. In case of uncertainty, the general approach followed by the tax office should be to interpret the submitted request. The main aspects of this methodology, highlighted by the Tribunal, may be summarized as follows: - Little importance should be given to thewording used (or the absence of particular terminology i.e., such as “claim”), although it may constitute an indicator; - Rather, the LTA should ascertain the substance and the objective that the taxpayer aims to achieve and to identify the appropriate legal avenue for that purpose. Todetermine the intent of the taxpay- er, the request should notably be consid- eredwith the general context surround- ing its submission and in light of the documentation and appendices pro- vided as attachments. Having clarified those concepts, the Tribunal noted that, in the caseunder review,the2021letter,whilereferring to specific tax assessments, did not convey any contestation from the taxpayer. Instead, it merely stated that the annual accountsonwhichthelitigious tax return was based did not accuratelyreflecttheeconom- ic reality and that theywould be rectified shortly. In other words, the judges considered that it was not apparent from the 2021 letter that the taxpayer considered it had been treated unfairly by the tax office and that it was contesting the initial assess- ment of its tax situation. Merely indicating that the set of financial statements it providedwere inaccu- rate was insufficient to deduce that the taxpayer’s true intentionwas to challenge the entire tax assess- ment. Rather, the Tribunal interpreted it as ameans for the taxpayer to inform the tax office that an amended tax returnwould be subsequently filed. Given that the taxpayer shouldhave explainedhow the initial taxassessment resulted inadverse taxcon- sequences andobserving that the revisedreturnwas ultimately filed approximately six months after the issuance of the challenged tax assessments, the judges confirmed the position sustainedby the LTA and denied the qualification of the 2021 letter as an administrative claim. Finally, the Tribunal mentioned that, even if §252 (1) AOrequirestheDirectoroftheLTAtoverifywhether a claim has been filed, it is established based on the case law that the Director has exclusive authority to decidewhether adocument submittedbya taxpayer qualifies as a claim under §249 AO. In the present case, the Tribunal considered that the tax authorities were right to conclude that there could have been no doubtforthetaxofficeastothenatureofthedisputed document(2021letter)asthelatterwasnotcharacter- izedby ambiguous terms (as explained above). Consequently, due to the absence of any claim – a mandatoryrequirementfortherightofrecoursewith theAdministrativeTribunal–theappealwasdeemed inadmissible. Key takeaways This decision is interesting as it addresses a recurring taxpayermisunderstandingregardingadministrative claims. The administrative jurisdictions have consis- tentlyruled,includinginthepresentcase,thatthefor- malrequirementsofsuchproceduresshouldbemin- imal,providedthatthetaxpayerhasmadeitclearthat it considers its tax situation to have been incorrectly assessed, that this assessment has triggered adverse consequences, and that it is seekinga reviewof its tax situation as a result (4) . Intheirapproach,thejudgesseemtotakeintoaccount the fact that not all taxpayers were accompanied in theirdealingswiththeLTA.Therefore,theabsenceor incorrect use of specific terminology should, in prin- ciple, not be detrimental or serve as a basis for the LTA to reject a claim. Instead, the rationale followed by the administrative jurisdictions should be to dis- cerntheobjectivepursuedbythetaxpayerinorderto infer the procedure they have (or should have) undertaken. Having said that, this open approach should not encourage taxpayers to take the process lightly as it could result in their request being perceived as a rectification if deemed more aligned with the tax- payer’s attitude and objectives (as interpreted), whichwouldultimatelyentail entirelydifferent con- sequences. In the case at hand, this notablypreclud- ed the taxpayer fromfurther appealing thedecision of the LTA. It is thus essential for taxpayers to act diligently fromthe outset, especially since adminis- trative claims must typically be submittedwithin a short timeframe (i.e., threemonths fromthe issuance of the challenged tax assessments), which the tax- payer failed to respect as the amended return com- plementing the alleged claim was ultimately filed several months after the deadline. In that regard, in one of our previous articles (5) , we noted that one of the consequences of the minimal formal requirements associated with administrative claimsisthattaxpayersshouldhavetheoptiontopro- vide additional documents at a later stage, as long as the Director has not yet finalized the review of the claim.Inthatcase,thejudgesacceptedthattheamend- ed return was electronically filed months after the administrativeclaimwassubmitted(and,inthatcon- text,more than threemonths after the issuance of the challenged tax assessments). In the present case, without contradicting their pre- vious position, the judges conversely upheld the LTA’sdecision to reject the amended tax returnfiled by the taxpayer more than three months after the issuance of the tax assessment. Since no administra- tive claim could be recognized, the same leniency for a revised return to be submitted well after the legal deadline could not be applied. It is clear from this decision that while the LTA take into account (or are expected to take into account) thefactthatnotalltaxpayersaretaxexperts,thelatter still face risks if they choose to engage with the LTA without any assistance. Given that it can sometimes be difficult topinpoint the specific aspects onwhich the LTA grant leniency, we would recommend that taxpayers err on the safe side and seek assistance as amatter of course. ByEmilienLEBAS, Partner,HeadofInternationalTax, Taxcontroversy&disputeresolution leader ValentinePLATEAU,Manager,InternationalTax, KPMGLuxembourg 1)Provisionaltaxassessmentsissuedbasedon§100aAOaregen- erated automatically, as they merely reproduce the information provided in the corresponding tax returns. They also leave the door open for the tax office to audit, and potentially challenge, the submitted tax returns within a five year period which starts running on 1 January following the year during which the tax liabilityarose. 2)Tribunaladministratif,6août1997,n°9574. 3) Unofficial English translation by the authors – §249: “(1) Legal remedies may be submitted in writing or recorded in the minutes. It is sufficient for the document to document who has filed the legal remedy. Filingbyemailispermitted.Anincorrectdesignationofthelegalremedy doesnot invalidate it. (2)Alegalremedyisconsideredfiledifitisevidentfromthedocumentor the declaration that the declarant feels adversely affected by the decision andrequests itsreassessment.” 4)Forinstance,AdministrativeTribunal,5February2025,n°47856 5)E.LebasandV.Plateau,“ AdministrativeTribunal:Judgmentclar- ifying interesting tax procedural aspects ”, AGEFI Luxembourg, March2025,Page38. 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