15 Jul TAX NEWSLETTER June 2020
I. CORPORATE TAXATION
• Health crisis: adjustment relating to Corporate Income Tax (“CIT”) instalments, Companies Contribution on the Added Value (“CVAE”) and Corporate Real Estate Contribution (“CFE”) – Press release of the French Tax Authorities (“FTA”) on May 29th, 2020 and Ministerial press release on June 5th, 2020
Companies whose CIT second instalment is normally due on June 15th can pay it until June 30th, 2020 without any particular formality, as for their CVAE instalment. The payment of the CFE is deferred until December 15th, 2020 (instead of June 15th) for certain companies, and for others, it is possible to anticipate the capping in June.
• Mergers and demergers without securities exchange: publication of the new FTA guidelines – BOI-IS-FUS-50-30, BOI-IS-FUS-10-10-20, BOI-IS-BASE-10-10-10-20 and BOI-RPPM-RCM-10-20- 30-30 on June 3rd, 2020
The FTA confirm that mergers and demergers without exchange of securities are tax-neutral as these transactions do not terminate an existing deferral of capital gains taxation and that the cancellation of the shares in the merged company does not give rise to taxation.
• Transfer of tax losses under ruling: period of appreciation of the significant change in the activity of the merged company – Decision of the 3rd and 8th chambers of the French Administrative Supreme Court (“CE”) on June 9th, 2020, n°436187, Société ID Espace
The CE considers that the period for the recognition of the tax losses, for which the transfer is requested, extends from the year in which the tax losses arose to the year in which the transfer is requested. The CE states that the fact that the activity giving rise to the tax losses was transferred, in whole or in part, before the merger transaction, to the company which is continuing it and which is requesting the transfer of the tax losses, cannot be regarded as a significant change in activity justifying a rejection decision.
II. TAX AUDIT
• Tax heavens: payments made in tax heaven are deemed artificial whoever the beneficiary may be – Decisions of the 9th and 10th chambers of the CE on June 5th, 2020, No.1808248 and No.425962, Société Faraday and Société Faraday
The CE rules that the provisions of Section 238 A of the French Tax Code (“FTC”) are applicable to sums paid or due to persons domiciled or established in a territory or State where they are subject to a privileged tax regime, even if these sums are later repaid to third parties.
• Health crisis: publication of new comments from the FTA on the suspension of tax obligations deadlines – BOI-DJC-COVID19 on June 24th, 2020
The FTA state that the time limits suspension applies to obligations or commitments that must be met in order to benefit from tax incentive and to inheritance statements filed out of time, from March 12th, to June 23rd, 2020 inclusive, which will not be subject to late interest or penalties.
III. INTERNATIONAL TAXATION
• Borders and cross borders workers: details on the application of conventional tax regimes with respect to teleworking – Agreement between France and Belgium on May 15th, 2020, and Agreements between France, Germany and Switzerland on May 13th, 2020
Days worked from home shall not impact the tax regime applicable to borders and cross borders workers, when teleworking results of measures taken in the context of the health crisis.
• Health crisis: the transfer pricing annual statement’s deadline is postponed – Update on “www.impots.gouv.fr” website on June 2nd, 2020
The tax form n°2257-SD – which must be filled within six months of the filing of the CIT return – can be subscribed until December 31st, 2020.
• Withholding tax on dividends exemption: the parent company established in the European Union (“EU”) must be the effective beneficiary of the paid dividends – Decision of the 9th and 10th chambers of the CE, on June 5th, 2020, No.423809, Sociétés Eqiom et Enka
The CE considers that being the beneficial owner of the dividends is a condition for the application of withholding tax exemption provided for Section 119 ter of the FTC and Section 5 of the Parent-Subsidiary Directive.
• Transfer of a company’s registered office in the EU: condition for an immediate taxation and an obligation to declare taxable incomes – Decision of the 3rd and 8th chambers of the CE on June 9th 2020, No. 418913, Société Gervais Samaniotto Industries
The CE rules that the transfer of a company’s registered office to another Member State of the EU – which has the effect of terminating its liability to CIT at the standard rate – entails the consequences of a business termination.
• France and Switzerland Tax Treaty: a Swiss taxpayer subject to tax on a lump sum basis can not be considered as a Swiss tax resident – Decision of the French Administrative Court of Appeal (“CAA”) of Paris on June 24th, 2020, No.19PA02886
The Paris CAA recalls that under Section 4, §6, b of the France and Switzerland Tax Treaty, a taxpayer can not be considered as a Swiss tax resident if he is only subject to tax on a lump sum basis (determined on the basis of the rental value of the residence(s) he owns in Switzerland).
IV. INDIVIDUAL TAXATION
• Contribution to the expenses of the marriage: the difference of treatment on whether or not their payments are made under a Court judgement infringes the Constitution – Decision of the French Constitutional Council (“CC”) on May 28th, 2020, No.2020-842 QPC
The CC considers that the difference between taxpayers making payments as a contribution to the expenses of the marriage pursuant to a Court judgement and those making it spontaneously is not justified.
• Trusts: the deadline for filing the tax forms is postponed – Post on “www.impots.gouv.fr” website on June 15th, 2020
The deadline for filing the annual tax form by trustees is exceptionally postponed to September 30th, 2020 (instead of June 15th).
• Paperless deposits and payments obligations: list of the concerned statements – Decree No.2020-772 on June 24th, 2020
Decree 2020-772 specifies that this obligation applies to statements of shares transfer, gifts and monetary gifts and to inheritance statements. The opening of the teleservice for each kind of statement will take place no later than July 1st, 2025.