I. Introduction
Software developers and IT companies have long navigated a complex and shifting landscape when it comes to the Belgian tax and social security regimes for copyright income. Following the 2022 reform, computer programs were explicitly excluded from both regimes, prompting widespread uncertainty and forcing many IT-driven businesses to rethink existing remuneration and IP structures.
As from income year 2026, the tax legislator has reversed course and reintroduced software into the scope of the favourable tax regime for copyright income. This development creates renewed opportunities for the IT sector, but within a significantly more restrictive legal and administrative framework than before.
In this contribution, we outline the legislative changes, analyse the remaining conditions and uncertainties, and highlight the key practical considerations for software developers, IT professionals and technology-driven companies.
In addition to the tax aspects, we also address the social security treatment of copyright income in the IT-sector, an area where no alignment with the current fiscal reform has yet been announced, and where the continued exclusion of computer programs gives rise to significant challenges for employers in the IT sector.
II. Background: the turbulent history of copyright income for the IT sector
A. From flagship regime to sectoral exclusion
For many years, the Belgian tax regime for copyright and neighbouring rights functioned as a cornerstone of tax-efficient remuneration for creative professions, including a significant part of the IT sector. Software developers, engineers and digital consultants frequently qualified for the regime, provided their activities resulted in copyright-protected works and the related rights were contractually transferred or licensed.
This practice came to an abrupt halt following the program law of 26 December 2022. In an attempt to “refocus” the regime on its original artistic rationale, the legislator explicitly excluded computer programs from the scope of qualifying works. As a result, software developers were largely cut off from a regime that remained available to other digital professions, such as web designers, content creators and game developers.
B. Legal uncertainty and market criticism
The exclusion of software triggered widespread criticism from both academia and practice. Two main objections were consistently raised.
First, the reform introduced an internal inconsistency within the digital economy: activities with a comparable creative and intellectual dimension were treated fundamentally differently from a tax perspective. Second, the exclusion created significant legal uncertainty, particularly for hybrid IT profiles whose work combined software development with other copyright-protected outputs (documentation, interfaces, training materials, etc.).
This uncertainty was further amplified by restrictive administrative practice and a series of negative advance rulings, which left many IT companies with little room to maintain existing remuneration structures.
C. Legislative reversal as from income year 2026
Against this backdrop, the legislator has now reversed course. A legislative amendment adopted in December 2025 explicitly brings software back within the scope of the copyright income regime, with effect from income year 2026.
While this intervention is widely welcomed by the IT sector, it does not amount to a simple return to the pre-2022 status quo. On the contrary, the reinstated regime operates within a more restrictive framework, shaped by the post-2022 conditions and the accompanying administrative interpretation. As such, the practical application for IT professionals requires renewed caution.
III. The legal framework: how software re-enters the copyright income regime
A. Amendment of Article 17 BITC92
The legislative change is technically realised through an amendment to Article 17, §1, 5° of the Belgian Income Tax Code (BITC92). Where the provision previously limited qualifying income to works of literature and art excluding computer programs, it now expressly includes income derived from the transfer or licensing of rights in computer programs.
This adjustment aligns the tax provision with the broader intellectual property framework set out in Book XI of the Code of Economic Law (CEL).
B. Explicit recognition of computer programs as protected works
The amended provision confirms that income derived from computer programs benefiting from copyright protection qualifies, in principle, for the favourable tax treatment. The reference to Book XI CEL clarifies that software is to be treated as a distinct category of protected works, subject to its own protection criteria.
Importantly, this clarification removes the artificial distinction introduced in 2022 between software and other works of authorship, which had become increasingly difficult to justify in a modern digital economy.
C. Temporal scope and entry into force
The reinstatement applies as from income year 2026. This means that, in practice, copyright remuneration linked to software development can once again be structured under the regime for qualifying income earned as from 1 January 2026.
For taxpayers who dismantled or suspended copyright remuneration schemes following the 2022 reform, this timing creates an opportunity to reassess and, where appropriate, redesign their remuneration policies. However, retroactive application is excluded.
IV. What qualifies as “software” for copyright purposes?
A. The originality requirement
As with all copyright-protected works, software must be original to qualify. Originality is assessed by reference to the author’s own intellectual creation, meaning that the program must reflect free and creative choices.
From a tax perspective, this requirement is crucial. Routine coding, purely technical implementations or work dictated entirely by functional constraints may fail to meet the originality threshold, even if they require a high level of technical skill.
B. Protection of expression, not ideas
Copyright protection extends to the expression of a computer program, such as source code and object code. By contrast, ideas, principles, logic, algorithms and programming concepts underlying the software remain excluded from protection.
This distinction is particularly relevant in IT environments where developers contribute at different stages of the development process. Only contributions that materialise in a protected form may generate qualifying copyright income.
C. Preparatory and ancillary materials
A recurring question concerns preparatory materials, such as mock-ups, wireframes, functional analyses and algorithmic schemes. While the legislation explicitly refers to computer programs, parliamentary materials confirm that the distinction between preparatory works and the final program is not decisive.
In practice, this means that preparatory materials may qualify, provided they are sufficiently original and form part of the creative process leading to the protected software. This interpretation is consistent with the position prior to the 2022 reform and offers additional flexibility for IT profiles involved in early-stage development and design.
V. Qualifying income in an IT context: what may fall under the regime?
A. Transfer or licensing of copyright as a prerequisite
As a starting point, the copyright income regime only applies where the author transfers or licenses copyright or neighbouring rights to a third party. For IT professionals, this typically occurs through contractual clauses whereby software-related rights are assigned to an employer or client.
Absent such a transfer or licence, no qualifying copyright income can arise, regardless of the originality or creative value of the underlying work. From a tax perspective, the contractual framework is therefore as important as the technical substance of the activities.
B. Distinguishing copyright income from professional remuneration
Only the portion of the remuneration that can be reasonably attributed to the exploitation of copyright qualifies for the favourable tax treatment. The remainder of the compensation remains subject to ordinary taxation as professional income or employment income.
In an IT environment, this distinction often requires a functional breakdown between:
- creative development activities leading to protected software; and
- non-qualifying tasks such as maintenance, debugging, project management, testing or purely technical implementation.
Over-allocation to copyright income continues to be a key audit trigger, particularly where the economic reality does not support a substantial creative component.
C. Typical IT profiles and scenarios
In practice, the regime may be relevant for a variety of IT profiles, including:
- In-house software developers, whose employment contracts include IP assignment clauses;
- Consultants and freelancers, operating through service agreements with IP transfer provisions;
- IT companies, remunerating employees or directors partly through copyright income linked to internally developed software.
Each scenario requires a tailored analysis, as the nature of the contractual relationship, the degree of autonomy and the end use of the software will materially influence the tax outcome.
VI. The “communication to the public” requirement: a persistent point of tension
A. A post-2022 condition with far-reaching consequences
Since the 2022 reform, copyright protection alone is no longer sufficient. For taxpayers who do not hold a formal artwork certificate, the transferred or licensed rights must be intended for:
- communication to the public,
- public performance or display, or
- reproduction.
While this condition appears neutral on paper, its interpretation has become one of the most contentious aspects of the regime for the IT sector.
B. Reproduction versus access by a “broad public”
A literal reading of the law suggests that reproduction alone may suffice. In a software context, reproduction occurs almost automatically, for example when software is installed, copied or deployed across systems.
However, both ministerial statements and advance ruling practice have introduced a more restrictive reading, effectively linking reproduction to some form of access by a “broad public”. This interpretation significantly narrows the scope of the regime for bespoke software solutions developed for a limited number of clients.
C. Custom-built software and B2B environments
This raises a fundamental question: can tailor-made software developed for a single client, or for internal business use, still meet the communication-to-the-public requirement?
The legislation itself provides no clear answer. Nor does the preparatory material resolve the tension between statutory wording and administrative interpretation. As matters stand, the risk remains that:
- highly customised, client-specific software may be challenged; and
- software intended for internal or restricted use may fail the “broad public” test.
For IT companies operating primarily in B2B environments, this uncertainty is not merely theoretical and must be factored into any structuring decision.
D. Practical implications for risk assessment
Given the current state of play, a conservative approach is warranted. Factors that may mitigate risk include:
- scalability of the software,
- potential reuse or licensing to multiple clients,
- integration into platforms accessible by a wider audience.
Conversely, one-off developments with no broader dissemination remain more exposed to challenge.
VII. Copyright income within remuneration structures
A. Compatibility with employment relationships
The reintroduction of software into the regime confirms that copyright income may once again form part of an employee’s remuneration package in the IT sector. This applies in particular to developers whose core activities involve creative software development.
That said, copyright remuneration cannot function as a substitute for salary. In case salary conversion occurs (where existing salary, bonuses, benefits in kind or any other existing remuneration component are reduced or replaced in order to allocate a higher portion to copyright income), the amounts concerned are automatically treated as ordinary salary and therefore cannot benefit from the favourable tax regime for copyright income.Accordingly, copyright income must reflect genuine IP exploitation and be proportionate to the value of the transferred rights.
B. Contractual and payroll alignment
From a compliance perspective, consistency is critical. Employment contracts, IP clauses, payroll documentation and tax reporting must all tell the same story.
Misalignment between contractual reality and tax treatment is a common weakness identified during audits and may result in requalification of the income as taxable salary.
C. Employees versus independent contractors
While the regime is available to both employees and independent contractors, the analysis differs materially. For freelancers and consultants, particular attention must be paid to:
- the economic substance of the IP transfer,
- the pricing of copyright remuneration,
- the interaction with VAT and social security.
In practice, the tax authorities tend to scrutinise independent structures more closely, especially where copyright income represents a substantial portion of total compensation.
VIII. The end of the lump-sum expense deduction: increased focus on substantiation
A. Abolition of the lump-sum cost regime
One of the less visible, yet practically significant, changes accompanying the reintroduction of software into the copyright income regime is the abolition of the lump-sum expense deduction for authors without an artwork certificate.
As from income year 2026, copyright income derived from software development will no longer benefit from the standardised lump sum expense percentages. Only the deduction of actual, demonstrable expenses remains available.
B. Impact on IT professionals and employers
For IT profiles, this change materially reduces the automatic tax advantage historically associated with the regime. In practice, many software developers incur limited personal expenses directly linked to the creation of copyrighted works, making the deduction of actual costs less impactful.
Employers and service providers should therefore reassess the net benefit of copyright remuneration, taking into account:
- the reduced expense deductibility,
- additional administrative complexity, and
- increased audit exposure.
C. Documentation as a key risk-mitigation tool
In this new environment, documentation becomes critical. Taxpayers must be able to substantiate both:
- the existence and scope of the copyrighted works, and
- the expenses effectively incurred in relation to their creation.
Insufficient substantiation may not only lead to denial of cost deductions, but also trigger a broader requalification of the income.
D. Continued risk of restrictive interpretation
While the legislative intent is clear, it does not preclude a cautious or restrictive interpretation by the tax authorities. On the contrary, given the historical sensitivity of the regime, renewed scrutiny of software-related claims should be expected.
Taxpayers should therefore resist the temptation to treat the reinstatement as an unconditional endorsement of pre-2022 practices.
IX. Social security treatment of copyright income
Since 1 January 2023, copyright income received within the framework of an employment contract has been exempt from Belgian social security contributions, subject to strict cumulative conditions. This exemption results from the exclusion of copyright income from the notion of “salary” for social security purposes under the royal decree of 7 April 2023 amending article 19 of the royal decree of 28 November 1969.
The social security regime is autonomous from the fiscal regime and has been framed by the National Social Security Office (RSZ/ONSS) as applying to copyright remuneration “in the domain of the arts”. Consequently, amendments to the tax regime do not automatically extend to social security purposes.
A. Scope of the exemption: continued exclusion of computer programs
The social security exemption applies to the same categories of works that were covered for tax purposes prior to the recent tax reform. Accordingly, only income paid by an employer in consideration for the transfer or licence of:
- copyright protected under Book XI, Title 5 of the CEL (or equivalent foreign legislation);
- relating to original works of literature and art within the meaning of article XI.165 CEL; and
- granted for the purpose of the effective exploitation or use of those rights, may fall within the scope of the exemption.
The social security legislation still expressly refers to this earlier definition of qualifying works, with the result that computer programs remain expressly excluded. Consequently, copyright income derived from the transfer or licence of rights relating to computer programs does not currently qualify for the exemption from social security contributions.
As from 1 January 2026, computer programs will fall within the scope of the favourable tax regime for copyright income. However, no corresponding amendment has been announced with respect to the social security legislation, in particular article 19, §2, 29° of the royal decree of 28 November 1969 and the royal decree of 7 April 2023. The social security rules therefore remain entirely autonomous and continue to exclude computer programs from this favourable social security regime.
Until a new royal decree is adopted and administrative instructions are updated, copyright income arising from the transfer or licence of rights in computer programs cannot benefit from the social security exemption. Alignment with the recent fiscal reform would be necessary to avoid significant legal uncertainty and operational complexity for employers in the IT sector.
B. Conditions to benefit from the exemption
For copyright income that does fall within the material scope of the social security rules (i.e., currently excluding computer programs), the following cumulative conditions must be met:
- The original copyright holder must either hold a valid artwork certificate or must have transferred/licensed his rights for the purpose of communication to the public, public performance or display, or reproduction. This condition aligns with the requirements under the fiscal regime.
- The employer must be able to demonstrate that both the employee’s salary and the copyright income reflect market value. Documentation supporting this assessment must be kept available for inspection by the National Social Security Office.
- The copyright income must be reported in the DmfA declaration, using the dedicated reporting code “code 47”, which identifies copyright remuneration qualifying for the exemption.
C. Financial thresholds: the 30/70 ratio
The employer may allocate a maximum of 30% of the total compensation package to copyright income.
More precisely, the exempt copyright income may not exceed 30% of the sum of (i) the salary subject to social security contributions and (ii) the copyright remuneration granted during the relevant reference period. In other words, at least 70% of that combined amount must consist of ordinary salary subject to social security contributions.
Accordingly:
- (i) at least 70% of the employee’s compensation must consist of salary subject to social security contributions, and
- (ii) no more than 30% may consist of exempted copyright income (reported under code 47).
Certain benefits are excluded from the calculation of this ratio, including:
- double holiday pay,
- meal vouchers,
- eco‑vouchers,
- company cars,
- employer contributions to supplementary pensions,
- termination indemnities and exit holiday pay,
- single holiday pay for untaken holidays due to suspension periods (code 15).
Where the 30% threshold is exceeded, only the excess portion is requalified as salary and becomes fully subject to ordinary social security contributions and professional income taxes. These excess amounts must be declared under code 1 (if exclusively linked to work performed in the relevant quarter) or code 2 (if not period‑specific, e.g. annual payments).
D. Prohibition on replacing existing remuneration
Under the social security regime, copyright income may not be granted in replacement of existing salary, bonuses, benefits in kind, or any other part of the remuneration package, whether such elements are subject to social security contributions.
Where copyright income is granted as a replacement for existing remuneration, it is automatically treated as salary and fully subject to ordinary social security contributions. This will be an important element for companies that amended their remuneration structure post-2022 in order not to leave any employees worse off, by increasing the salary component of the remuneration.
This change cannot automatically be turned back to the pre-2022 situation.
E. Outlook for IT sector copyright income
For the moment, copyright income arising from the transfer or licence of rights in computer programs remains excluded from the exemption from social security contributions. No legislative proposal or administrative indication has been issued suggesting an imminent alignment with the fiscal reform applicable as from 2026.
Given the autonomous nature of the tax and social security regimes, the reinstatement of computer programs within the scope of the favourable tax regime does not imply a similar extension for social security purposes.
In the absence of an amendment to article 19, §2, 29° of the royal decree of 28 November 1969, copyright income arising from the transfer or licence of rights in computer programs will continue to be fully subject to social security contributions, even where it benefits from the preferential tax‑regime.
There is currently no certainty that such alignment will occur.
X. Practical example
The example below is deliberately simplified and uses rounded figures for illustrative purposes only.
A. Assumptions
An IT company employs a senior software developer who receives a total compensation package of EUR 100,000 gross. Copyright income arising from software development remains excluded from the exemption.
For simplicity, we assume:
- marginal personal income tax rate: 50%
- average effective tax on copyright income (after separate taxation): 15%
- employee social security contributions: 13.07%
- employer social security contributions: 25%
B. Scenario 1 – No copyright remuneration (EUR 100,000 gross salary)
1. Employee level
- Gross salary: EUR 100,000
- Employee social security (13.07%): EUR 13,070
- Taxable base: EUR 86,930
- Income tax (assuming 50% marginal tax): approx. EUR 43,465
Net income: 100,000 − 13,070 − 43,465 = EUR 43,465
2. Employer level
- Gross salary: EUR 100,000
- Employer social security (25%): EUR 25,000
Total employer cost: EUR 125,000
C. Scenario 2 – EUR 70,000 salary + EUR 30,000 copyright income (tax-qualifying, but subject to social security contributions)
1. Employee level
a. Salary Portion (EUR 70,000)
- Gross salary :EUR 70,000
- Employee social security (13.07%): EUR 9,149
- Taxable base: EUR 60,851
- Income tax (approx. 50%): EUR 30,426
Net salary: EUR 70,000 – EUR 9,149 – EUR 30,426 = EUR 30,425
b. Copyright portion (EUR 30,000)
- Employee social security (13.07%): EUR 3,921
- Taxable base: EUR 26,079
- Income tax (assuming separate taxation at 15%): EUR 3,912
Net copyright income: EUR 30,000 – EUR 3,921 – EUR 3,912 = EUR 22,167
Total net income (a+b): EUR 30,425 + EUR 22,167 = EUR 52,592
2. Employer impact
- Total gross remuneration: EUR 100,000
- Employer social security (25%): EUR 25,000
Total employer cost: EUR 125,000
3. Comparison at employee level
- Net income without copyright structure: EUR 43,465
- Net income with copyright structure: EUR 52,592
Estimated net gain: EUR 9,127
This illustrates that even if copyright income remains subject to social security contributions, the separate tax regime may still generate a substantial net benefit.
In this simplified scenario, the employer cost remains unchanged, while the employee benefits from improved net remuneration.
XI. Conclusion: cautious optimism, not a return to business as usual
The legislator’s decision to bring software back within the scope of the favourable tax regime for copyright income is a significant and welcome development for the Belgian IT sector. It restores a degree of coherence to the tax treatment of digital professions and offers renewed planning opportunities for software developers and IT-driven businesses.
At the same time, the regime operates in a far more constrained environment than before 2022. The combination of stricter eligibility conditions heightened administrative scrutiny and reduced expense deductibility means that copyright income should no longer be approached as a standard remuneration tool.
Moreover, the reintroduction of software into the tax regime does not currently extend to social security rules. Computer programs remain excluded from the favourable social security regime, creating a structural divergence where copyright income arising from the transfer or licence of rights in computer programs may be tax advantaged but still subject to social security contributions. This misalignment makes it increasingly complex for employers to navigate both regimes. An amendment to the existing social security rules would therefore be required to achieve alignment with the tax reform, but no such change has been announced to date.
For IT companies and professionals considering (re)implementation, a thorough legal, tax and factual analysis is essential. When properly structured and documented, copyright remuneration can still play a meaningful role, but only as part of a carefully balanced and compliant remuneration strategy.
XII. Practical takeaways for the IT sector
From a practical perspective, the reintroduction of software into the favourable tax regime for copyright income creates both opportunities and obligations.
Key takeaways include:
- software development can once again generate qualifying copyright income as from 2026;
- originality and genuine creative input remain essential;
- contractual IP arrangements are decisive;
- the “communication to the public” requirement remains the main uncertainty, particularly for bespoke software;
- the abolition of lump-sum expenses increases the importance of economic and tax modelling;
- robust documentation is indispensable, although an advance tax ruling is not a legal requirement, we do consider it highly recommened;
- from a social security perspective, computer programs remain excluded from the favourable regime, creating a situation in which copyright income arising from the transfer or licence of rights in computer programs may be tax‑advantaged but still fully subject to social security contributions.
In many cases, a case-by-case assessment will be required to determine whether the regime remains appropriate and defensible.
If you have any questions regarding the tax treatment of copyright income and software development, please feel free to contact the authors of this article: Alexis Ceuterick, Marie-Ysaline-Lannoye or Rik Strauven.
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This newsletter does not constitute legal advice or a legal opinion. Please consult with a legal counsel of your choice before taking any action based on the information provided.