The Finance Law for 2015 (Loi de finances pour 2015, 2015 Finance Law) and the Amending Finance Law for 2014 (Loi de finances rectificative pour 2014, 2014 Amending Finance Law) have now been enacted by the French Parliament and reviewed by the Constitutional Court, which has struck down several provisions in its decisions dated December 29, 2014.
In addition to the main provisions of these two laws, this first French Tax Update for 2015 will briefly summarize the main tax measures contained in the draft law for growth and activity (Projet de loi pour la croissance et l’activité or so-called Projet de loi Macron, Macron Draft Law), which was announced on December 10, 2014, and will be discussed before the French Parliament during the first semester of 2015.
2015 FINANCE LAW
INCOMPLETE TRANSFER PRICING DOCUMENTATION
The 2015 Finance Law includes a new provision reinforcing the penalty applicable to certain taxpayers failing to comply with the French transfer pricing documentation requirements.
Prior to this law, the penalty sanctioning failure to provide to the French tax authorities sufficient transfer pricing documentation, was equal to 5 percent of the profits unduly transferred abroad.
Pursuant to the new provision, the penalty can now be equal to the higher amount between (i) 0.5 percent of the amount of the transactions relating to missing or incomplete documentation (Undocumented Transactions) and (ii) 5 percent of the amount of the transfer pricing reassessment pertaining to the Undocumented Transactions.
This provision follows a first unsuccessful attempt of the French government in 2013 to reinforce the penalty, by introducing a penalty equal to 0.5 percent of the taxpayers’ turnover. This move was struck down by the French Constitutional Court on the basis that it was unrelated to the Undocumented Transactions and disproportionate to its objective.
The new provision, applicable to tax reassessments initiated as from January 1, 2015, was found Constitution-compliant by the French Constitutional Court.
SPECIFIC FINE FOR ADVISERS
Among the provisions contained in the 2015 Finance Law as enacted by the French Parliament was the introduction of a new fine (Fine) for professionals helping or assisting transactions that were subsequently recharacterized under the Abuse of Law procedure (AoL) with the resulting application of the specific AoL penalty of either 40 percent or 80 percent (AoL Penalty). The Fine was to be 5 percent of the turnover realized through the recharacterized transaction, with a minimum amount of 10,000 euros.
However, the Constitutional Court decided that the above provision would be contrary to the Constitution, violating the principle whereby crimes and offenses must be clearly defined by the relevant legislation. The Constitutional Court thus struck down the Fine, finding that the corresponding provision was not clear in two aspects:
- First, it was not clear whether the tax offense consisted of the recharacterization of the transaction under the AoL (where the relevant incriminated person could have challenged the recharacterization independently from the application of the AoL Penalty), or whether the offense consisted of the mere fact that the AoL Penalty was imposed;
- Second, it was not clear whether the Fine would apply to 5 percent of the turnover generated by the recharacterized transaction, or to 5 percent of the turnover realized by the incriminated adviser.
Although the Fine has thus been removed from the 2015 Finance Law, it is possible that a similar provision would be proposed in the coming months or years on the basis of a clarified wording.
2014 AMENDING FINANCE LAW
PARENT/SUBSIDIARY TAX EXEMPTION FOR DIVIDENDS
Implementing the EU Directive 2014/86/UE, the 2014 Amending Finance Law has narrowed the participation-exemption regime for dividends (P-E Exemption) in order to avoid double non-taxation situations.
P-E Exemption Narrowed
The 2014 Amending Finance Law basically excludes from the P-E Exemption any dividend income derived from:
- Profits of a subsidiary pertaining to an activity that is not subject to corporation tax or a similar tax (this exclusion has however been struck down by the Constitutional Court as it was not sufficiently specific and could inter alia end up applying to chains of holding companies);
- Shares held into a company to the extent that such dividend income was deductible from the taxable result of such company (this exclusion mirrors the anti-avoidance regime targeting hybrid instruments (please see our French Tax Updates for January, February and May 2014 for further details regarding such regime));
- Shares to which no voting rights are attached (unless the parent company holds shares representing at least 5 percent of both the capital and the voting rights of the relevant subsidiary) (this exclusion was already applicable under a different provision);
- Shares of a company established in a noncooperative jurisdiction within the meaning of Article 238-0 A the French tax code (FTC) (this exclusion was already applicable under a different provision); and
- Shares of real estate companies that are booked as current assets under the real estate brokers regime within the meaning of Article 35 of the FTC (this exclusion was already applicable under a different provision).
These new provisions apply to fiscal years opened as from January 1, 2015.
Official guidelines to be issued by the French tax authorities (FTA) will be eagerly awaited (inter alia with the computation methods to be used and the situation of dividends decided in 2014 but paid in 2015).
Introduction of an Anti-Avoidance Provision in the EU Parent/Subsidiary Directive
It should also be noted that the general anti-abuse rule (GAAR) that was discussed prior to the adoption of the EU Directive 2014/86/UE, which modified the EU Parent/Subsidiary Directive (PSD) but eventually was postponed due to a lack of political consensus, has been approved by the ECOFIN Council in December 2014. The GAAR requires Member States to refrain from granting the benefits of the PSD if one of the main purposes of an arrangement is to obtain a tax advantage that would defeat the object or purpose of the PSD and such arrangement is not genuine.
In the absence of clear guidance on the terms used in the GAAR, room for interpretation is left to Member States (which will have to implement the GAAR by December 31, 2015 at the latest). Such room could inter alia create uncertainty for European holding companies with EU subsidiaries, and international groups may need to improve the business rationale and effective substance of their holding companies.
Noteworthy French Q4 Case Law Clarifying the P-E Exemption
In a very recent decision (Conseil d’Etat, December 15, 2014, n°380942), the Conseil d’Etat has brought some clarification with respect to the two-year holding period to be satisfied under the P-E Exemption (please see our French Tax Update for December 2014 for further details regarding previous case law on point).
In substance, the Conseil d’Etat confirmed that such two-year holding period should not apply to all shares held by the parent company, but only to those shares corresponding to the minimum 5 percent shareholding to be satisfied under the P-E Exemption. As a result, dividends received in respect of shares held for less than two years may nevertheless benefit from the P-E Exemption to the extent that the parent company has otherwise held a minimum 5 percent shareholding for at least two years.
TAX REGIME APPLICABLE TO THE BUYBACK OF SHARES
Following a decision issued few months ago by the Constitutional Court (Conseil Constitutionnel, June 20, 2014, n°2014-404-QPC), the 2014 Amending Finance Law has modified the income tax treatment, so that gains arising from the buyback of shares are now subject to tax only as capital gains.
Prior to the above-mentioned decision, the income tax treatment was contingent upon the buyback procedure: (i) if the buyback was carried out in order to reduce the share capital for a reason other than the offset of losses, the gains were subject to income tax as dividends for a certain fraction, and as capital gains for the remainder, whereas (ii) if the buyback was carried out (a) in order to attribute the shares to be bought back to employees or (b) within a buyback program within the meaning of the French commerce code, the gains were subject to income tax only as capital gains.
As expected, the reform aims at generalizing the capital gains treatment. Such treatment is generally more favorable than the combined dividends/capital gains treatment that was previously applicable in certain cases. In particular, where the shareholder is not a French resident for tax purposes, the capital gains treatment could amount to a tax exemption in France (if the applicable double tax treaty provides so).
It should also be noted that the relevant amounts may not be subject to the specific 3 percent contribution imposed on distributed income since gains derived from the buyback of shares are not qualified as distributed income anymore.
WITHHOLDING TAX ON FRENCH-SOURCED DIVIDENDS PAID TO NON-EU FUNDS
The 2014 Amending Finance Law introduces a new provision that should allow certain non-EU investment funds receiving French-sourced dividends to effectively benefit from the French withholding tax (WHT) exemption applicable to foreign investment funds.
The current position of the FTA is that only certain EU investment funds that are comparable to French investment funds and that meet certain filing requirements are entitled to receive dividends exempt from WHT (or to obtain the refund of any WHT).
The new provision provides that non-EU funds can from now on benefit from the WHT exemption if the provisions of the applicable international tax treaty signed with France effectively enable the FTA to obtain, from the relevant authorities of the jurisdiction where the non-EU fund is located, certain information with which to verify whether the fund is eligible or not for the exemption from the WHT on French-sourced dividends.
MODIFICATION OF THE TAX CONSOLIDATION RULES TO ALLOW FOR HORIZONTAL CONSOLIDATION
As presented in the previous French Tax Update, the 2014 Amending Finance Law contains new provisions that aim at allowing horizontal company structures (e.g., two French companies held by a non-French company) to constitute a French tax consolidation group (Consolidation).
These provisions seek to bring the Consolidation regime into compliance with the EU law freedom of establishment principle, following (i) the recent decisions of the European Union Court of Justice (EUCJ) regarding the Dutch tax consolidation regime (fiscale eenheid) and (ii) the formal notice issued by the European Commission against France in October 2014.
Under the new provisions, several conditions have to be met in order for two French sister companies to form a Consolidation when their parent is a non-French company. Inter alia, it is necessary for such parent company to be located in either a Member State of the EU, Iceland, Liechtenstein or Norway. Other usual conditions in order to benefit from the Consolidation regime have to be complied with (e.g., the 95 percent holding threshold should be satisfied by all relevant companies, the parent company should not be held by a company that could itself be the head of a Consolidation).
It should be noted that the non-French parent company cannot elect to be the head of the Consolidation. The new provision provides in this respect that only one of the eligible French subsidiaries can be the head of the Consolidation. Specific attention should consequently be paid to the choice of such head, as the French tax consequences attached thereto may be substantial (e.g., in the case of an exit from the Consolidation, or in respect of intragroup reorganizations).
These provisions, moreover, adapt the specific rules that may apply under the Consolidation regime (e.g., so-called Charasse amendment, tax treatment of intragroup reorganizations, neutralizations, and de-neutralizations of certain transactions), and provide for filing obligations that appear to be more burdensome than those applicable to standard Consolidations.
The new provisions apply to fiscal years ended as from December 31, 2014. For prior fiscal years, relevant horizontal structures that have not been able to form a Consolidation may nevertheless claim a refund of the relevant taxes paid in respect of fiscal years 2012 to 2014 on the basis of the EUCJ decisions.
TAX REGIME OF FRENCH TRUST-LIKE ENTITIES (FIDUCIES)
The fiducie is, essentially, the French version of Anglo-Saxon trust arrangements where settlors (constituant) would transfer rights or assets to trustees (fiduciaire) which would manage them with a defined objective for the benefit of beneficiaries.
The 2014 Amending Finance Law introduces two new provisions to enable a flexible combination of the fiducie with the participation exemption regime (95 percent exemption of dividends) on the one hand, and with the tax consolidation (of 95 percent owned subsidiaries) on the other hand.
From the Participation-Exemption Regime for Dividends Perspective
Prior to the new provision, if a constituant transferred the relevant equity securities to a fiduciaire, the securities would lose the benefit of the participation-exemption regime for dividends (P-E Exemption), even if the securities would have otherwise qualified for the P-E Exemption.
The new provision provides that the P-E Exemption would continue to apply on the condition that the constituant continues to exercise the voting rights in respect of the transferred securities, or that the fiduciaire exercises these rights in the manner determined by the constituant; the P-E Exemption would apply even if the constituant and the fiduciaire agree that the above voting arrangements include certain limitations to protect the rights of the beneficiaries of the fiducie. Also, the new provision explicitly mentions that the minimum holding period under the P-E Exemption (i.e., two years) would not be interrupted by the transfer of the securities to the fiduciaire.
From the Tax Consolidation Perspective
Prior to the new provision, if a constituant transferred the relevant equity securities to a fiduciaire, the tax consolidation (Consolidation) would cease to apply if, due to the transfer, the constituant owned less than 95 percent of the underlying subsidiary (even if the Consolidation was available prior to the transfer).
The new provision provides that the Consolidation could continue to apply in respect of such securities (with full voting and financial rights), subject to the same conditions in respect of the exercise of the relevant voting rights by the constituant (or the fiduciaire) as those mentioned above for the Exemption.
MERGER OF FRENCH-LISTED REIT-LIKE ENTITIES
French-listed REIT-like entities (Sociétés d’Investissements Immobiliers Cotées, SIICs) benefit, as in other REIT regimes, from a full exemption from French corporate income tax on rental profits and capital gains generated by their real estate assets, provided they distribute a significant portion of these profits to their shareholders.
In order to maintain this exemption, the previous Amending Finance Law (Loi de finances rectificative pour 2013, 2013 Amending Finance Law) had increased the thresholds of their distribution obligations to 95 percent for income derived from rental activities (from 85 percent prior to this law), and to 60 percent for capital gains (from 50 percent prior to this law).
However, the 2013 Amending Finance Law did not raise the threshold of the distribution obligations in order to benefit from the specific reorganization tax regime that allows mergers and spinoffs involving SIICs without triggering detrimental tax consequences.
For consistency reasons, the 2014 Amending Finance Law raised the abovementioned threshold. Under the new provision, in order to benefit from the neutral tax regime, the surviving SIIC needs to distribute at least 60 percent of the merger premium (from 50 percent prior to the 2014 Amending Finance Law).
TRANSFER TAXES IMPOSED ON TRANSFERS OF SHARES INTO REAL ESTATE COMPANIES
The sale of shares in nonlisted entities that are principally invested in French real estate (RE Entity) is liable to stamp duties at the rate of 5 percent.
The 2014 Amending Finance Law includes a provision that changes the definition of the taxable basis for stamp duties purposes.
Prior to this new provision, the taxable basis was equal (in the proportion of the sold shares to the share capital) to the market value of the underlying real estate assets (held directly or indirectly by the RE Entity) reduced by the amount of debt used by the RE Entity to acquire the assets, plus the market value of other assets held by the RE Entity.
The new provision reverts to the normal rules, i.e., essentially, the tax basis is equal to the sale price of the shares.
MITIGATION OF TRANSFER PRICING REASSESSMENTS
The 2014 Amending Finance Law introduces a new provision that enables the taxpayer to mitigate certain consequences of a transfer pricing reassessment.
Such a reassessment may result, inter alia, and, under certain conditions, in a deemed distribution by the relevant French taxpayer in favor of the non-French affiliate entity, such distribution being generally liable to the French withholding tax on dividends (WHT). Prior to the new provision, the taxpayer could have required the mitigation but under strict conditions.
The new provision enables the taxpayer to automatically avoid the WHT if it meets certain conditions, including those whereby it accepts the underlying assessment and the relevant amounts are repatriated to France. The new provision would not apply if the affiliated non-French entity is located in a noncooperative jurisdiction.
REAL ESTATE CAPITAL GAINS REALIZED BY NONRESIDENT INDIVIDUALS
In order to ensure compliance with the EU free movement of capital principle, the 2014 Amending Finance Law expands the French real estate capital gains tax treatment applicable to EU nonresident individuals to nonresident individuals of third countries. This generalizes the flat 19 percent rate applicable to capital gains realized on the sale of French real estate or the sale of real estate entities shares by nonresident individuals, regardless of their residence (France, EU or third countries).
While the 2014 Amending Finance Law intended to retain the 75 percent real estate capital gains tax rate currently applicable to nonresident individuals residing in noncooperative jurisdictions, the Constitutional Court struck down this provision as it found that the combined tax rate of 90.5 percent (with the addition of the social contributions at a 15.5 percent rate) was excessive.
REPEAL OF THE OBLIGATION FOR NONRESIDENT INDIVIDUALS TO APPOINT A TAX REPRESENTATIVE IN CERTAIN SITUATIONS
The 2014 Amending Finance Law exempts taxpayers established in a country within the European Economic Area, other than Liechtenstein, from the obligation to appoint a tax representative in certain situations, including inter alia foreign taxpayers liable to French corporate income tax, French personal income or wealth tax and 3 percent real estate tax.
CORPORATION TAX DEDUCTION FOR INVESTMENTS INTO INNOVATIVE SMES
The 2013 Amending Finance Law had already adopted a provision allowing the deduction over 5 years, for corporation tax purposes, of the acquisition price of the shares of certain eligible innovative small or medium-sized entities (SMEs). In order for such provision not to constitute an illegal state aid within the meaning of EU law, the deduction mechanism had to be modified:
- Eligible SMEs are defined by reference to the EU Regulation 651/2014;
- SMEs listed on a French or foreign regulated market are not eligible;
- The condition to be qualified as an innovative SME is simplified and pertains only to 10 percent of the expenses being eligible to the R&D tax credit during one of the three last fiscal years;
- The deduction is also available for investments into EU investment funds that are similar to eligible French investments funds;
- The relevant innovative SME may not receive more than 15 million euros from investors applying the deduction;
- The deduction is available only for investments into eligible SMEs that (i) are the first investments of the relevant investor into such eligible SME or (ii) follow previous investments that already gave rise to the deduction;
- The deduction regime will be in force for only 10 years.
It should be noted that the deduction will be available only once validated by the EU Commission.
NONDEDUCTIBILITY OF CERTAIN TAXES BORNE BY THE BANKING INDUSTRY
For financial years closed as from December 31, 2015, the so-called banking tax on systemic risk will become nondeductible for corporate tax purposes. The tax, which is a percentage of the regulatory equity requirements of the relevant banks, is planned to decrease before being eliminated by 2019.
As from 2015, the relevant banks will be also liable to the contributions to national (in 2015) and EU Single Resolution Funds (from 2016); neither of these contributions will be deductible for corporate tax purposes.
MACRON DRAFT LAW
Please note that the Macron Draft Law is yet to be discussed before the French Parliament. The comments below thus only amount to an early summary of the main proposed provisions.
FREE SHARES PLANS
Several proposed provisions aim at making the social and tax regime applicable to free shares grants more favorable:
- The acquisition gain (i.e. the value of the free shares as of the date of their grant) would be subject to income tax as capital gains rather than employment income (thereby allowing the application of certain deductions depending on the holding period of the shares);
- The acquisition gain would however become subject to the 15.5 percent social levies on passive income (rather than the 8 percent social levies on activity income);
- The specific social levy imposed on the beneficiary (currently 10 percent) would be repealed;
- The specific social levy imposed on the granting company (currently 30 percent) would be decreased to 20 percent, and would be computed as of the acquisition of the free shares (rather than as of the date of grant);
- The mandatory acquisition and holding period would be reduced from 2+2 years to 1+1 years.
Companies looking to issue BSPCE warrants (Bons de souscription de parts de créateur d’entreprise, BSPCEs) must comply with several conditions.
Two of these conditions would be broadened by the Macron Draft Law: (i) eligible issuing companies could issue BSPCEs to employees and managers of their subsidiaries, provided inter alia that such subsidiaries are held at 75 percent or more by the issuing company, and (ii) companies resulting from a concentration, reorganization, or extension or takeover of activity could be eligible to a BSPCEs issuance provided that all companies that took part in this concentration, reorganization, or extension or takeover of activity complied with the eligibility conditions on a consolidated basis.