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The terms and conditions governing the liability for corporate income tax of foreign States that carry on in France a real estate leasing business directly or through SCIs with which they are associated, are specified by the “Conseil d’Etat”.

Should a foreign State which has made real estate investments in France be subject to corporate tax, in the same way as French private or public instances carrying out such operations? This was the question raised by the “Conseil d’Etat” in two cases in which the real estate leasing activities carried on in France were carried out, in one case, directly by the foreign State owning the buildings in question, and in the other, by French SCIs with which the foreign State is associated.

The subjection of one State to the taxes of another State is likely to raise questions relating to the immunities enjoyed by States because of the principles of equality and reciprocal independence of these entities: immunity from jurisdiction (which prevents a State from being subject to the courts of another State) and immunity from execution (which protects a State from acts of forced execution and measures of constraint undertaken by the services of another State). These immunities could not apply in the present case since, in the case, it was the foreign State which had taken the initiative to bring the matter before the court and, in the other case, there was a dispute as to the basis of assessment in the absence of any dispute over recovery. Following the example of the positions already taken by States other than France, there was therefore nothing to prevent, in those circumstances, the foreign State from being taxed in France in respect of its property leasing activities.

In the cases mentioned, the findings of the Public Rapporteur show that the State of Kuwait was the owner of the building in question and received the rental income directly, without the intermediation of the public agency KIA having any impact in this respect.

That is why, the “Conseil d’Etat” confirms that the management of real estate assets may constitute a profit-making operation even if it is not of a commercial nature within the meaning of Articles 34 and 35 of the General Tax Code (“Code général des impôts”). The provisions of Article 206-5 of the same code do not preclude the liability to corporation tax under ordinary law of property income received by a non-profit-making or similar organisation, where, having regard to its purpose and its particular conditions of exercise, the rental activity is a profit-making operation within the meaning of Article 206.5 of the General Tax Code.

In a judgment of the same day, the “Conseil d’Etat” also considered, with regard to capital gains on real estate made by taxpayers domiciled outside France, that the exemption from the levy provided for in the article 244 bis A of the CGI, benefits foreign States but does not extend to partnerships in which they are partners (CE 22-02-2020 n°423160, SCI Faucon).

All patrimony professionals are now asking themselves: should you house your rental investments in a real estate property company (« sociétés civiles immobilières ») subject to corporate tax (« impôt sur les sociétés »)?

Indeed, there are almost only advantages to being subject to corporation tax, rather than acquiring a property directly which is subject to property income tax.

This is mainly due to the tax burden, which is much lower for businesses than for individuals.

1. Why is property income (« revenus fonciers ») not a good option? 

Whether directly or through a real estate property company subject to income tax (« impôt sur le revenu »), the rents received are added to the current income (« revenus courants ») of the partners (calculated in proportion to their participation in the capital of the real estate property company) and are taxed according to their marginal tax bracket (« tranche marginale d’imposition »).

For taxpayers subject to the marginal rate of 30%, the tax rate is 47.20%, including social security contributions of 17.20%.

By using a real estate property company for corporate income tax, the scenery changes: profits are taxed at 15% up to 38 120€ per year (an amount that few lessors exceed), 28% above that.

The main deduction comes later, when the company distributes its results in the form of dividends.

The partner then suffers the one-off flat-rate levy (« prélèvement forfaitaire unique ») of 30%, including the social security levy.

Although it is possible to subject this income to the progressive scale, this is not only interesting for people with little or no tax liability.

In fact, the shareholder of a real estate property company subject to corporate tax pays virtually no tax during the lifetime of the company.

2. What are the possible deductions? 

Here is another strength of the corporate tax system.

With this option, you can depreciate the value of the property, that is, deduct part of its price each year from the income received.

For an apartment worth 300 000€, for example, approximately 15 000€ will be deducted from the rent received in the first year.

The SCI will then show a negative accounting result, or very slightly positive, even though the rents are a good source of cash flow.

It will therefore not be taxable, generally for several years.

In addition to depreciation, there are deductions that reduce taxable income, which are much more generous in terms of corporate income tax.

Indeed, lessors subject to income tax can only deduct from their income loan interest, charges and rental repairs, whereas those using corporate tax have much more extensive possibilities.

They also have the possibility to deduct acquisition costs and fees as well as improvement works incurred, for example, for the modernization of an old building.

This further reduces the tax base and thus any tax that may be due.

3. What capital gains tax (« impôt sur la plus-value »)? 

The situation will change if you intend to resell the property to use the capital for other purposes after a few years.

Holding directly or through a real estate property company for income tax purposes is often less penalizing than holding through a real estate property company for corporate tax purposes, for two reasons.

First, only the actual capital gain (« plus-value réelle ») is taxable, i.e. the difference between the resale price and the purchase price (plus acquisition costs and works).

Secondly, you benefit from an annual allowance that reduces the taxable capital gain. You are exempt from tax on this after 22 years of ownership, as well as from social security contributions after 30 years.

With the real estate property company subject to corporate income tax, the capital gain is calculated directly, with the depreciation deducted from the purchase price.

It will be considered that the purchase price of a property purchased for 100 000€, on which 20 000€ has been depreciated, will be 80 000€.

As a result, the taxable capital gain is always very significant even if the price of the property has not changed.

However, this handicap must be put into perspective.

The purpose of holding a property investment company through a real estate property company for corporate tax purposes is not to resell it and then dissolve it at the end of the term.

It is designed with a view to long-term conservation even if this means selling assets and reinvesting the sums in other purchases, followed, or not, by the transfer of the assets.

The exit of the United Kingdom from the European Union on 1 February 2020 is subject to a transitional period until at least the end of the year. The withdrawal agreement regulates the consequences of this exit during this period in tax matters and even in certain areas beyond.

It is a well-known fact that in application of the agreement 2019/C 384 l/01 signed on November 12th of 2019 (JOEC C 384 I) by the European Union and the United Kingdom, this last is no longer a member of the European Union, since 1 February 2020. In reality, this exit will in fact only have consequences at the earliest at the end of the year, due to a transitional period until at least 31 December 2020.

Here is a point about the tax situation.

An effective exit but with no effect until 31 December 2020

Internal texts implementing directives and regulations 

The exit of the United Kingdom from the European Union, effective on 1 February 2020, is accompanied by a transition period which ends on 31 December 2020, unless a decision is taken to extend it (by one or two years).

During this period, European Union law continues to apply to the United Kingdom, and the United Kingdom continues to be regarded as a State of the European Union by the other Member States (art.7 (1) & art. 127 (6) of the agreement).
This rule applies to tax matters as in other areas (art. 126 & 127 of the agreement).

All European tax directives continue to have effect in the United Kingdom until 31 December 2020, whether it be the VAT Directive (“directive TVA”) , the Parent-Subsidiary Directive (“directive mère-filiale”), the Mergers Directive (“directive fusions”), etc.

To give a few examples : the neutrality of restructuring operations provided for by the Merger Directive will remain the rule, the exemptions from withholding tax provided for by the Parent-Subsidiary Directive will continue to benefit flows between a State of the European Union and the United Kingdom, cross-border transactions will continue to follow the VAT rules when they are carried out, during this transitional period, between a State of the European Union and the United Kingdom.

The same principale applies in EU regulation, in particular the Regulation on the coordination of European social security systems pursuant to which the CJUE and, subsequently, the Conseil d’Etat ruled that persons covered by a European social security scheme without being dependent on a compulsory French social security scheme should be exempted from CSG and CRDS on their income and property gains (CJUE 26-2 2015 aff. 623/13, de Ruyter ; CE 27-7-2015 n°33455).

Also, the provisions of European Union law that come into force during this transitional period are binding on the United Kingdom until the end of this period. For instance, the reporting obligations that will apply from 1 July 2020 to intermediaries and certain taxpayers provided for in Directive 2018/822 of 25 May 2018, known as “DAC6”. The United Kingdom would also be obliged to apply the new VAT rules on e-commerce if the transitional period were to last beyond 1 January 2021, the date of entry into force of Directive 2017/2455 of 5 December 2017.

National rules that are directly dictated by a European directive or regulation is thus settled : these rules remain applicable until 31 December 2020 as if Brexit had never happened.

Internal texts implementing fundamental freedoms 

If European law continues to apply, what about national rules that are not dictated by an obligation to transpose directives, nor are they the result of European regulations? Many national laws take account of the fundamental freedoms stemming from the Treaty on the Functioning of the European Union. There are countless laws that originally reserved a special tax treatment for a purely French flow and which, in order to respect the fundamental European freedoms, had to grant the same advantages to intra-Community flows.

The 29 January Agreement’s includes in Article 127 (6) the principle that “unless otherwise provided in this Agreement, any reference to the Member States in the Union law applicable under paragraph 1, including in its implementation and application by the Member States, shall be understood to include the United Kingdom”.

In the example of a law reserving a favourable tax regime for a purely internal financial flow, and which has been amended to give flows with EU States the same favourable tax treatment, the exit from the United Kingdom should not have an impact before 31 December 2020 (at the earliest) since in this case the legislative amendment is the implementation of the European free movement of capital.

A practical example of this is the PEA (equity savings plan). Originally reserved for investments in exclusively French securities (Law 92-666 of 16-7-1992), the PEA was opened to European equities (as of 1 January 2002) and to units or shares of French UCITS (“OPCVM”) composed of at least 75% European equities (as of 1 January 2003) and finally, by the Finance Act for 2004, to units of UCITS established in other Member States of the European Community employing more than 75% of their assets in eligible securities and rights. These changes are a direct result of the French government’s obligation to respect the free movement of capital. Consequently, and in application of the principle laid down in paragraph 6 of the above-mentioned article 127 of the withdrawal agreement, the securities of companies established in the United Kingdom will continue to be eligible until the end of the transitional period.

A general rule following specific preventive solutions

In reality the French State, fearing a Brexit without an agreement, had already taken a number of solutions, by legislative means, by ordinance or even by simple rescripts.

Thus, to take the example of the PEA, a decree of 22 March 2019 (JO of 24) had already provided that securities issued by UK companies and registered in a PEA prior to the withdrawal of the United Kingdom from the European Union without agreement would remain eligible for the plan for a period of 15 months from the withdrawal of the United Kingdom from the European Union without agreement, and that units of UK UCIs (“OPC”) held in a PEA prior to 30 March 2019 would remain eligible for a period of 15 or 21 months (BF 6/19 inf. 478).

About the integrated groups area, it should also be borne in mind that, for financial years ending on or after 31 December 2018, Article 32 of Law 2018-1317 of 28 December 2018 provided that the withdrawal of the United Kingdom from the European Union would not put an end to existing integrated groups until the end of the financial year, in progress on the date of withdrawal, whether the UK company is a non-resident parent entity or a foreign company or an intermediate company (FR 1/19 inf. 52 n°31 to 50 p.116).

This legislative provision may today appear redundant since, where a group is composed of companies which end their financial year on 31 December 2020, the date on which the UK company will cease to be regarded as an EU company is the same as that provided for by the transitional period of the Agreement.

However, in practice, the withdrawal agreement may, depending on the situation, be more or less favourable than the above-mentioned law. It will be more favourable if it is extended. In this case, the British company will be deemed to be European until the new term decided by the extension, in the event that it goes beyond the closing date of the company following the financial year in progress on the date of the withdrawal on 1 February 2020. However, if the transition period actually ends in December 2020, domestic law may be more favorable in the event that the UK company begins a financial year between January 1, 2020 and February 1, 2020 : it will be deemed to meet the conditions for eligibility for integration until its closing date, i.e. beyond December 31, 2020. However, this possibility of benefiting from a deferral beyond 31 December will not be open to companies opening their financial year after 1 February 2020, unless the administration agrees to extend the favourable legislative measure by considering as the date of withdrawal from the United Kingdom, not the official date of 1 February, but the actual date of 31 December 2020.

Finally, it was in a rescript dated 6 March 2019 (BOI-RES-000035) that the tax authorities dealt with the fate of products giving entitlement to the parent-subsidiary regime for shareholdings in British companies. It is known that when certain conditions are met, Article 216 of the CGI allows a quota of 1% instead of 5% to be applied to these products. The rescript makes it possible to maintain this favourable rate for income received from a UK company until the company receiving the distribution closes its current financial year at the time of withdrawal from the UK (FR 13/19 inf. 2).

In some areas : rules laid down for the period after the transitional period

Many situations, arising before the end of the transitional period, require the preservation of EU law beyond that period. This is the case for customs (Articles 47 to 49 of the withdrawal agreement), VAT (Article 51) and excise duties (Article 52).

Special rules for the application of VAT are already laid down :

• the VAT Directive will apply to flows which began before the end of the transitional period and for five years thereafter “as regards the rights and obligations of the taxable person in respect of transactions with a cross-border element between the United Kingdom and a Member State which took place before the end of the transitional period” ;
• applications for refunds of VAT by a non-established taxable person may be submitted until 31 March 2021 in the United Kingdom (for taxable persons of an EU Member State) and in each of the EU Member States (for UK taxable persons) using the electronic procedure provided by the directive 2008/9 ;
• and, finally, declarations made via the OSS before the end of the transitional period may be rectified by 31 December 2021 at the latest.

Similarly, administrative cooperation or access to information systems shall be subject to specific extensions so as not to undermine their effectiveness :

• the procedures for administrative cooperation between the Member States and the United Kingdom will continue to apply from the first day following the end of the transitional period for a period which varies according to the area : in customs matters until completion of a procedure initiated earlier (Article 98 of the Agreement), in VAT matters for four years (Article 99) and for five years in the recovery of tax claims arising before the end of the transitional period (Article 100) ;
• access to information systems in the relevant areas of EU law will be provided in the United Kingdom (Article 50 of the Agreement) for the purposes of operations arising before the end of the transitional period. The duration of access will vary according to the databases concerned (Annex IV to the Agreement). For instance, the VIES VAT database will be accessible until 31 December 2024 and must continue to be updated by the United Kingdom in the meantime.

Finally, state aid procedures may be initiated by the European Commission against the United Kingdom for four years in respect of situations arising before the end of the transitional period. In general, the European Court of Justice may be seized by the United Kingdom for failure to fulfil its obligations before the end of the transitional period.

For many other situations, however, the Agreement does not lay down any rules and it will be for the Member States and the United Kingdom to determine the shape of the new post-Brexit relationship.

Taxpayers in the non-commercial profits (NCP) category, that fall within the scope of the controlled declaration, has to subscribe, in practice by 20 May 2020 at the latest, to the declaration n°2035-SD and its annexes. Taxpayers which are not in the NCP category will declared directly the amount of their gross revenues “recettes brutes” on the form n°2042-C Pro.

MAIN INNOVATIONS 

➪ Statement of results of 2019 “Détermination du résultat de 2019”

• Sums received by the interpreter-translators collaborators of the public service of justice are classified as non-commercial profits. Same for the amounts withdrawn from the activity carried out by management and accounting associations.
• Non-commercial companies “sociétés non commerciales” shall declare all their existing foreign bank accounts.
• The maximum deduction allowed for the cost of meals is at 13,95€ in 2019.
• A merging company may claim exemption from the added value “exonération de la plus-value” realised by the acquired company on the sale of a fund to a third party, during the interim period within the claim period “période de réclamation”.
• According to the court of Douai, the gain from the exempt of professional capital-gains “exonération des plus-values professionnelles” depending on the value of the conceded elements, is not subject to compliance with the conditions specific to management leases in the event of termination of the contract the day before the transfer of the fund.
• The legal system of tax deferral “dispositif légal d’étalement de l’impôt” gives to long-term capital gains, in the event of a sale accompanied by a vendor credit of all the fixed assets of the business activity, now concerns a greater number of companies.
• The long-term capital gains regime “régime des plus-values à long terme” is extended, as of January 1, 2019, to more products earned by a natural person inventor or his successors in title. All these products are taxable at the specific rate of 10%.
• As of January 1, 2019, the scope of the deferral of taxation of the capital gain “report d’imposition de la plus-value” arising on the contribution by a natural person inventor of some industrial property rights is extended.
• Voluntary payments on a group or in a individual pension plan “plan d’épargne retraite collectif ou individuel”, both are are deductible within certain limits.
• Two of the thresholds which allow small companies to retain only the fiscal useful life “durée d’usage fiscal” to depreciate their fixed assets are modified as of May 31, 2019.

➪ Measures adopted in 2019 with no effect on the 2019’s result 

• In order to determine the tax regime applicable to income earned in 2020, the threshold for application of the micro-NCP “micro-BNC” scheme is raised to 72600€, (Law 2019-1479 of 28/12/2019 art.2).
• The consequences of the transition from micro-NCB regime to the regime of controlled declaration   “régime de la déclaration contrôlée” with option for commitment compatibility “comptabilité d’engagement”, or vice versa, are specified as from the taxation of income in 2020 (Law 2019-1479  of 28/12/2019 art.55).
• As of January 1, 2020, the threshold of liability for profit-sharing is raised, and the procedures for counting and exceeding the number of employees are assessed according to the social security rules (Law 2019-486 of 22/05/2019 art.11).

In accordance with decree 2019-656 of 06/27/2019

Since January 1st, 2019, a flat-rate tax has been imposed on capital gains realized by private individuals during the occasional sale of digital assets, particularly cryptocurrencies (Law 2018-1317 of 28-12-2018, art 41).

The decree of June 27th, 2019 clarifies the declarative obligations incumbent, on the one hand, on taxpayers transferring (selling) digital assets and, on the other hand, on individuals, associations and companies without a commercial form domiciled or established in France that are holders of digital asset accounts opened, detained, used or closed abroad.

Regarding this second point, the decree states in particular that a person, association or company is deemed to detain a digital asset account abroad when he/she/it is the holder, co-holder, economic beneficiary or beneficial owner of such account.

A person is considered to be using a digital asset account if she has made at least one credit or debit transaction for a calendar or tax year, either as an account holder or by proxy, for her personal purposes or for a resident person.

The decree came into force on June 29th, 2019, except for the provisions relating to accounts opened, held, used or closed abroad that apply to declarations filed from January 1st, 2020.

Declarative obligations regarding Bitcoin and other digital assets are specified.docx

In accordance with the provisions of Article 115 of the General Tax Code of France, (hereinafter CGI), profits made in France by foreign companies through a permanent establishment are presumed to be distributed to partners who do not have a tax domicile or registered office in France, and therefore are subject to the withholding tax referred to Article 119 bis, 2 CGI.

This deduction is provisionally liquidated on the total amount of French results available. It can therefore, at the request of a foreign company, be recalculated on the basis of the actually distributed amounts.

Clarification of the calculation of the withholding tax of foreign companies.docx