Architects: A favourable ruling relating to surrender of copyright

While the Service of Advance Rulings had initially considered that architects could not benefit from the copyright tax regime (see the annual report of the SDA for the year 2011), a decision from 5 April 2016 has just corrected this error. The request related to a firm of architects. The company wanted to ensure that the compensation it pays to its associates and employees or independent workers for surrendering their copyright can be qualified as income from movable assets under the meaning of Article 17 § 1, 5° of the Income Tax Code. After recognising that the protection of copyright extends to works resulting from the services of an architect (building, plan, design, technical drawing), the SDA noted that the architects, assistant architects and associates of the applicant would sign over their property rights to her, subject to the signature of a specific agreement or of a rider to their work contract. With regards to the associates, the agreement was established directly between the firm of architects and its associates, despite the fact that they invoice their services through the intermediary of a management company. The plaintiff company carried out an analysis to determine the share of its activities related to the use of copyright. It came to 65%. The allowance paid in consideration for the transfer of the rights was set as a lump sum determined on the basis of an analysis of the different job descriptions and the importance of the creative aspect inherent in those functions. For the associates, the allowance was set at 12% of the financial envelope allocated to them. This amount is in addition to their current pay. For architects, the allowance was fixed at 15% of their current pay. The assistants obtained 4% of their remuneration.