The simplified tax garnishment thoroughly examined

Gepubliceerd op 24/04/2025

Antwerp Court of Appeal rules: the FPS Finance has a duty to convert a simplified tax garnishment (het vereenvoudigd fiscaal derdenbeslag) into a general law garnishment when it is established that the notice by registered mail was not delivered.

Significant loosening for government

The FPS Finance – like any creditor – has the right to seize a third party. The typical example is wage attachment from the debtor’s employer.

Normally, garnishment (derdenbeslag) pursuant to section 1539 et seq. of the Judicial Code (Gerechtelijk wetboek – hereinafter referred to as: JC). by bailiff’s writ. Both the original debtor, and the garnishee (derde-beslagene) (in the example: the employer) are thus notified of the attachment by the bailiff.

However, the FPS Finance enjoys a significant loosening on the general law procedure. Thus, in accordance with Article 21 of the Code for the Amicable and Enforced Recovery of Fiscal and Non-Fiscal Debts (Wetboek van de Minnelijke en Gedwongen Invordering van fiscale en niet-fiscale schuldvorderingen – hereinafter referred to as: CAER), it can make a garnishment purely by registered mail.

The garnishee has, in accordance with article 1452 JC, 15 days from the garnishment to make a statement of the sums or items that are the subject of the garnishment.

However, if the garnishee fails to make this declaration (in due time), article 1542 JC provides for a sanction that can be imposed by the attachment judge (beslagrechter). Hereby, garnishee may be declared co-debtor for a debt thus completely alien to himself. Importantly, this particularly far-reaching sanction is provided for garnishee that deliberately thwart the garnishment.

A question from court: the consequences of a non-transferred notice

A simplified tax garnishment was levied by the FPS Finance on an employer. However, the latter never received any registered mail with the notice of attachment. Moreover, the employer never received any proof of delivery of a registered letter in his letterbox. Therefore, the employer had absolutely no knowledge of any garnishment. Suddenly, to its great surprise, the employer received a summons for a co-debt declaration.

At first instance, the employer was not assisted by counsel, but the attachment judge correctly ruled that the FPS Finance failed in its burden of proof. The Belgian State then appealed and the employer was convicted in absentia. In turn, the employer lodged an objection with the Antwerp Court of Appeal.

The employer’s position was firm: he had not received any registered mail. Consequently, the employer had in no way known, nor been able to know, about the garnishment. Needless to say, therefore, he did not make a declaration of garnishment (verklaring van derde-beslagene).

In its interlocutory judgment, the court requested the parties to take a position on the scope of article 21, §1 CAER, which states that the attachment takes effect from the “handing over of the document to the addressee”. In doing so, the court referred to the legal doctrine relating to the former article 164, §1 KB/WIB 92, which was later adopted in the WGMI. It held, in effect, that when an addressee garnishee fails to collect a registered mail, the FPS Finance is obliged to serve an executive attachment under general law

No attachment without receipt: a plea for the letter of the law

In our view, Article 21, §1 CAER is clear. When a registered letter is returned to the sender, i.e. the FPS Finance, it is undeniable that the documents were not handed over to the addressee garnishee. Therefore – in the absence of proper notification – the garnishment cannot take effect.

The court ruled that the legislator had expressly opted in article 21, §1 CAER to regulate the effect of attachment by registered mail differently. Normally, notifications by registered mail generally make deadlines run from the third working day following the day on which the letter was handed over to the postal services. For the simplified tax garnishment by registered mail, an additional threshold was indeed provided for its effect, namely the actual handing over of the document to the addressee garnishee. In this way, the period of 15 days referred to in article 1542 JC cannot start as long as the documents have not been delivered to the addressee garnishee.

However, the working method of the FPS Finance does start from the principle that the garnishment becomes effective as soon as the registered letter is sent in accordance with article 53bis, 2° JC. However, this completely ignores the explicit deviation from this rule provided by the legislator in article 21, §1 CAER.

Moreover, the FPS Finance’s modus operandi assumes flawless deliveries of registered mail, which is a complete utopia. It happens indeed more than once that a registered mail does not reach its final destination.

It is thus nothing short of a dangerous illusion to assume that a registered mail will always arrive safe and sound. This is particularly relevant when there are such far-reaching consequences as in the case of a simplified tax garnishment. Moreover, it would be manifestly unjust for the Belgian State to be able to pass on mistakes made by its appointee(s) to the individual garnishee such as the employer.

Court restores legal certainty: Belgian State under pressure

The court thus ruled that a simplified tax garnishment cannot take effect if the documents have not been delivered to the addressee garnishee. In practice, this will mean that the Belgian State will have to convert the simplified garnishment into a general law garnishment by bailiff’s writ each time the registered mail regarding is not collected.

Needless to say, this judgment brings about a major change in the rules of the game of debt collection, but it is the only way to rule out declaring bona fide garnishee as unjustified co-obligors. Thus, the court opts for legal certainty. Whether the Belgian State will abide by this judgment is currently uncertain. To be (most probably) continued.