French tax update – noteworthy tax courts decisions and Draft Macron Law

The present French Tax Update will focus on (i) certain noteworthy tax courts decisions issued in the last months of 2014 and in the first months of 2015, and (ii) the so-called projet de loi Macron (Draft Macron Law) adopted by the Assemblée Nationale in February 2015 and now discussed by the Sénat.

RECENT NOTEWORTHY TAX COURTS DECISIONS

APPLICATION OF FRENCH WITHHOLDING TAX ON INTRA-EU DIVIDENDS

The Appeal Court of Versailles (CAA Versailles, January 29, 2015) had to decide the validity of French withholding tax on dividends (WHT) applied to dividends distributed by a French entity (FrenchCo) to a Belgian shareholder (GBL).

The FrenchCo dividend had been subject to a 15 percent WHT in the hands of GBL, as per the double tax treaty entered into between France and Belgium, and the lower court had decided that the WHT was violating the principle of free movement of capital within the EU. The principal argument, from the GBL perspective, was that the WHT was a final cost for GBL given the impossibility of using any tax credit, whereas a French corporate tax shareholder, being in a tax loss situation, would be better treated given that no WHT is applied to dividends distributed to such shareholder.

The Appeal Court takes, firstly, the view that the above EU principle should be understood as follows: a tax disadvantage resulting from the parallel exercise of tax jurisdictions of two member states would not be a violation of the EU principle of free movement of capital to the extent these jurisdictions are not exercised on a discriminatory basis. In this respect it is important to verify, inter alia, whether or not the different tax rules, applied to nonresidents and residents, refer to situations that are objectively not comparable.

The Appeal Court then proceeds with the actual comparison of the situation of GBL and a hypothetical French corporate tax resident shareholder. In the first scenario, if GBL benefits from an exemption regime in Belgium in respect of the dividends, the Appeal Court believes that such a situation does not create any obligation for France to limit or eliminate the WHT given that both member states are exercising, in parallel, their tax jurisdictions and that such exercise is not discriminatory.

In the second scenario, if a French corporate tax resident receives the dividends and does not pay any tax because of its tax loss situation, the Appeal Court considers that the dividend does reduce the tax loss, with a consequence of accelerating the taxation of the French entity in the future. Thus, the related timing difference (the WHT applicable immediately to GBL, whereas the corporate tax would be applied to the French entity in subsequent years) may not be viewed as a violation of the principle of free movement of capital. The Appeal Court also refutes the GBL argument whereby GBL is comparable to a French SICAV (one form of exempt French UCITs) and, accordingly, does not accept a discrimination in this respect.

Finally, the Appeal Court takes the view that the application of the WHT does not violate the EU principle of freedom of establishment, given the fact that such principle is applicable only when the relevant shareholder is in a situation to be able to influence the relevant subsidiary, whereas GBL had no such influence over FrenchCo.

Accordingly, the Appeal Court sides with the French tax authorities (FTA) and upholds the validity of the WHT.

IMPACT OF STOCK LENDING ON PARTICIPATION-EXEMPTION REGIME FOR DIVIDENDS

In a recent a decision (CE, September 26, 2014, société Artemis Conseil), the Conseil d’Etat ruled on the situation where shares that are eligible to the 95 percent dividend exemption (subject, inter alia, to a two-year holding period), are lent for a certain period of time. In this decision, the Conseil d’Etat upheld the FTA position, i.e. that (i) a stock lending should be treated as a disposal of the relevant shares, and (ii) accordingly, at the maturity of the stock lending, the lender would need to keep the shares for a new period of two years in order to be eligible for the 95 percent exemption.

In a symmetrical situation where shares had been lent to a French company by a French individual (CAA Bordeaux, November 17, 2014, SC Rimar), the Appeal Court of Bordeaux applied the above position of the Conseil d’Etat, and consequently ruled that the 95 percent exemption for dividends is not available to shares that are held by a given company under a stock lending agreement, notwithstanding the fact that the shares are being lent to such company by an individual.

In our view, this position, based on the literal language of the French tax code (FTC), is harsh, and one may find it is regrettable that, on top of a stock lending not being treated as a neutral transaction for the individual lender, the 95 percent exemption for dividends is not available for shares held under a stock lending agreement.

APPLICATION OF THE ADMINISTRATIVE SUPREME COURT POSITION ON ABUSIVE SHELL COMPANIES

In a September 18, 2014 Kerguelan decision, the Appeal Court of Paris ruled in favor of the taxpayer re the application of the abuse of law procedure (AOL Procedure) to a transaction involving allegedly abusive shell companies (much resembling the so-called coquillard transactions; please see our French tax update for July 2014). The facts of the case were as follows:

A corporate taxpayer had acquired 2,998 of the 3,000 shares of a company for 21 million FF;
Soon after the purchase, the acquired entity made a dividend distribution amounting to 20.7 million FF eligible to the dividend tax credit régime (Avoir Fiscal);
After the distribution, the purchaser recorded a tax-deductible depreciation in respect of the shares of the acquired entity amounting to 19.6 million FF; and
The purchaser finally sold the shares of the acquired entity to an affiliate for an amount of 100,000 FF, realizing as such a tax-deductible loss of 20.9 million FF.
The FTA had challenged the transaction under the AOL Procedure by taking the view that the transaction had no other purpose than to obtain the tax benefit of the Avoir Fiscal, since the French taxpayer was not at risk in respect of this shareholding.

Surprisingly, the Appeal Court ruled that the FTA did not adequately bring proof of the existence of an artificial arrangement in this transaction and sided with the taxpayer by pointing out that the low-risk nature of a transaction does not eliminate any risk borne by the shareholder.

To our knowledge, this is the first time following the recent decisions of the Conseil d’Etat agreeing with the position of the FTA whereby a coquillard transaction should be recharacterized under the AOL Procedure, that an Appeal Court sides with the taxpayer.

INTERPRETATION OF TAX TREATIES TERMS

The Conseil d’Etat had to decide an issue, regarding the taxation of a German airliner in France under the double tax treaty entered into between France and Germany (FR/GER Treaty) (CE, November 24, 2014).

The German airliner had a French branch based in Boulogne-Billancourt within the Paris area, and had received a notification from the FTA whereby it was subject to the so-called taxe d’habitation in respect of its premises in Boulogne-Billancourt, i.e., a local council tax that is due when the relevant taxpayer is not liable to taxe professionnelle (TP) or the cotisation foncière des entreprises (CFE) – certain local taxes due, inter alia, in respect of real estate assets used for business purposes.

The fact that the German airliner was exempt from TP and CFE was not really in doubt given the wording of the FR/GER Treaty. The question was rather if the above TP/CFE exemption should be broadened to the taxe d’habitation, which is not, per se, mentioned in the treaty.

The principle of interpretation of tax treaties signed by France is one, generally, of strict interpretation, i.e., the wording of the treaty is the basis of its analysis, unless such wording is not clear. In that case, other methods (review of the preparatory papers, etc.) may be taken into account to ascertain the rationale of the relevant provisions.

Accordingly, in this case, the Conseil d’Etat could have decided that the FR/GER Treaty does not mention any exemption re the taxe d’habitation, and, on the basis of the strict interpretation, no provision of the treaty prevents France from applying the taxe d’habitation to the German airliner.

However, the Conseil d’Etat takes another direction which is to interpret the treaty in light of its object and purpose. In this case, the Conseil d’Etat takes the view that the object of the relevant treaty provisions was that an airline company should be taxed in the jurisdiction where it has its headquarters (i.e. Germany, in the case of this airliner), and, accordingly, even if a specific tax (such as the taxe d’habitation) is not specifically covered by the treaty, the above principle of exemption should apply as it would realize the will of the two signing states.

Accordingly, the Conseil d’Etat decides in favor of the German airliner, thus going beyond the clear wording of the FR/GER Treaty.

CONDITIONS TO BENEFIT FROM A TAX TREATY WITHHOLDING TAX EXEMPTION

In a late 2014 decision (CE, November 19, 2014, Sté Thollon Diffusion), the Conseil d’Etat provided a welcome clarification of the elements to gather in order to benefit from the WHT exemption provided by a double tax treaty entered into by France.

In the case at hand, a French company (FrenchCo) had distributed dividends to a Moroccan-resident shareholder (Mo-Res). Under Article 13 of the double tax treaty entered into between France and Morocco on May 29, 1970 (FR/MO Treaty), dividends distributed by a French company to a resident of Morocco who is the beneficial owner of such dividends may not be subject to a WHT exceeding 15 percent and can benefit from a WHT exemption to the extent that they are taxable in Morocco in the name of such Moroccan resident (WHT Exemption).

In its official guidelines on the FR/MO treaty (14 B-2-72), the FTA had first considered that, in order to benefit from the WHT Exemption, the relevant Moroccan resident had to file a specific request including an affidavit provided by the Moroccan tax authorities, certifying that such Moroccan resident was, at the date of payment of the relevant dividends, a resident of Morocco and was taxable in Morocco on such dividends.

In subsequent official guidelines pertaining more generally to WHT rates reduced under double tax treaties (initially 4 J-1-05, now BOI-INT-DG-20-20-20-20-20120912), the FTA specified that a condition to benefit from a reduced WHT rate is for the beneficiary of the relevant French-sourced dividends to be subject, in its country of residence, to an income tax on such French-sourced dividends.

The FTA consequently (i) accepted the application of the reduced 15 percent rate to the dividends distributed by FrenchCo to Mo-Res but (ii) denied the WHT Exemption to such dividends on the basis that, although Mo-Res did provide a Moroccan residence certificate, he did not demonstrate that the dividends were subject to income tax in Morocco.

Conversely, FrenchCo argued that the provision of the French 5000-FR form signed by the Moroccan tax authorities, which certified that the beneficial owner of the relevant dividends was a tax resident of Morocco and that such dividends have been or will be declared to the Moroccan tax authorities, was sufficient to benefit from the WHT Exemption.

The Conseil d’Etat upheld the position of FrenchCo, on the basis of a strict application of the language provided by the FR/MO Treaty.

The Conseil d’Etat found thus that, in order to benefit from the WHT Exemption, FrenchCo only had to satisfy two conditions: (i) that the dividends are taxable under Moroccan law, and (ii) that the recipient of such dividends was their beneficial owner and was a tax resident of Morocco at the time of their distribution. As a result, the FTA could not require, in order to apply the WHT Exemption, that Mo-Res be effectively subject to income tax in Morocco on account of these dividends.

In our view, this position of the Conseil d’Etat should be interpreted as applying only to the WHT Exemption or to WHT exemptions (or rate reductions) that are drafted in the same way as Article 13 of the FR/MO Treaty. It would not apply, for instance, to double tax treaty provisions that expressly require an effective taxation (i.e., Article 29 of the double tax treaty entered into between France and the United Kingdom on June 19, 2008 or paragraph 11 of the Protocol to the double tax treaty entered into between France and Hong Kong on March 21, 2010).

DEBT WAIVER AND ABNORMAL ACT OF MANAGEMENT DOCTRINE

In a November 4, 2014 SCA Lagardère decision, the Appeal Court of Versailles ruled on the case of a French corporate taxpayer that had granted a waiver of a € 600,000 receivable to its fully owned Italian subsidiary (Waiver).

Under the relevant French tax rules, while a waiver of part or all of the amount of a debt instrument generally triggers a taxable profit for the debtor, the debt waiver may be deducted from the creditors’ taxable profit only if inter alia such waiver does not result in a so-called abnormal act of management doctrine (acte anormal de gestion).

Pursuant to the abnormal act of management doctrine, the FTA are entitled to reassess from a tax standpoint the consequences of corporate decisions resulting in expenses or losses of profits not justified by the corporate interest of the company.

In the case at hand, the FTA had taken the view that the Waiver should not be treated as a deductible item for the parent company on the grounds that the debt was waived without adequate consideration.

The parent company argued that the Waiver was justified for business reasons, since it not only helped to avoid the liquidation of its financially distressed Italian subsidiary, but also allowed the company to safeguard its Italian market opportunities and subsequent payments of royalties.

Interestingly, the Appeal Court sided with the taxpayer by taking the view, in light of the Italian market’s development outlook, that the Waiver was in the parent company’s business interest.

SALE OF SHARES AT A DISCOUNTED PRICE

In another November 4, 2014 case (CAA Versailles, November 4, 2014, min. c/ Sté Rexel Développement), the Appeal Court of Versailles reviewed a situation where the FTA had challenged the sale of an unlisted company’s shares realized between a French company (FrenchCo) and a Luxembourg affiliate company (LuxCo) on the basis that the sale price was inferior to the market value of the shares. Accordingly, the FTA analyzed the transaction as a transfer of profits between two related companies, resulting as such in the following adjustments:

An increase of the FrenchCo’s taxable income resulting from the correction of the alleged insufficient price; and
A deemed distribution by the FrenchCo in favor of the LuxCo that made the taxpayer liable to the 25 percent exceptional WHT that was applicable in 2005 to such distributions.
The taxpayer had argued (i) that there was no price insufficiency since the valuation had been carried out by an independent, well-established firm, and (ii) based on a position in line with previous case law, that the alleged price insufficiency was in any case insignificant insofar as it was inferior to 20 percent.

Given the uncertainties attached the valuation of the shares of unlisted companies in the absence of comparable transactions, the Appeal Court took the view that a 17,5 percent difference between the sale price and the market value alleged by the FTA was not significant, and that the fact the sale was an intragroup transaction was not relevant.

Consequently, the Appeal Court ruled that the FTA did not establish a substantial price insufficiency that would constitute a transfer of profits abroad, which led it to discharge the 25 percent exceptional WHT and corresponding penalties.

ACTIVE HOLDING COMPANY DEFINITION CLARIFIED

The French wealth tax (impôt de solidarité sur la fortune, ISF) is a yearly tax payable by individuals on the basis of the net value of their assets as of January 1 of the relevant year of taxation. Several types of assets are, however, exempted from ISF. In particular, shares held in companies in which the relevant individual exercises his professional activity may be exempted from ISF under the so-called professional assets exemption (PA Exemption).

Under certain conditions, the FTC extends the PA Exemption to the shares of a holding company, provided inter alia that such holding company actively participates to the management of the company in which the relevant individual exercises his professional activity or of the group to which such company belongs (Active Holding).

In the recent years, the FTA often challenged the use of the PA Exemption on the basis that the holding company for which the relevant individual would claim the PA Exemption would not constitute an Active Holding within the FTC meaning, as interpreted by the official guidelines issues by the FTA. In particular, the FTA would often challenge that the relevant holding company does not effectively and actively manage all of the companies in which it is invested. In practice, the FTA regularly considered that a holding company that did not manage one of the companies in which it is invested is by nature a passive holding company, and thus could not qualify as an Active Holding within the FTC meaning, as interpreted by the official guidelines issued by the FTA.

In a decision dated December 11, 2014, the Paris lower Court (Tribunal de Grande Instance de Paris, n°13/06937) issued a decision that, in essence, invalidates the FTA position. The Court ruled that where the main activity of a holding company is to actively manage all of the companies it controls, such holding company may qualify as an Active Holding within the FTC meaning, despite that fact that it holds a minority interest in a company it does not actively manage.

This clarification, provided in the context of an ISF challenge, could also prove useful in respect of several other tax regimes (be it income tax regimes or transfer taxes) referring to the Active Holding concept.

DRAFT MACRON LAW

A first draft of the Macron Draft Law), was voted after its first reading before the French Assemblée Nationale on February 17, 2015. The Macron Draft Law will be further discussed by the French Parliament, the comments below thus amount to only 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 acquisition) 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;
The new provisions would apply only to awards granted pursuant to board authorizations that are decided as from the publication date of the Draft Macron Law.
BSPCE WARRANTS

Companies looking to issue BSPCE warrants (Bons de souscription de parts de créateur d’entreprise, BSPCEs) must currently 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 comply with the eligibility conditions on a consolidated basis.

PERSONAL INCOME TAX REGIME FOR EXPATRIATES

Under certain conditions, employees temporarily transferred to France may benefit from a personal income tax exemption on certain elements of their compensation and on certain capital gains until the end of the fifth year following their arrival.

The Macron Draft Law broadens the scope of this favorable regime by extending it to employees who change positions in their company or are hired by another company of a same group within the five-year period.

CREATION OF A NEW LP-LIKE PRIVATE EQUITY VEHICLE

The Macron Draft Law also introduces a new private equity investment vehicle, the so-called unregulated partnership company (Société de Libre Partenariat, SLP). The SLP was created in response to the increased competition faced by French investment funds in the context of the implementation of the AIFM Directive.

The vehicle will in practice take the form a French Société en Commandite Simple, a rarely used French corporate form that features two categories of partners: general partners who bear joint and unlimited liability, and shareholders whose liability is limited to their contributions.

Other than the usually sought-after characteristics of a flexible investment vehicle such as adjustable bylaws and the usual GP/LP distinctive features, the SLP will offer from a French tax standpoint the following advantages:

Tax transparency of the SLP;
Ability to claim treaty benefits;
French personal income tax exemption for qualifying investors; and
Ability to issue carried interest shares.