08 Apr TAX NEWSLETTER March 2021
I. CORPORATE TAXATION
• Value Added Tax (« VAT »): a “trustee carrying out a non-economic activity on a professional basis” is considered as a taxable person acting as such – Decision of the 5th chamber of the Court of Justice of the European Union (“CJEU”) on March 17th, 2021, No. C-459/19, Wellcome Trust Ltd
The CJEU considers that services acquired for a non-economic activity on a professional basis by a trustee must be considered as being provided to a taxable person “acting as such”, within the meaning of Section 44 of Directive 2006/112/EC on November 28th, 2006 (so-called “VAT Directive”).
II. TAX AUDIT
• Claim period: the special claim period for the parent company of a consolidated tax group – Decision of the 3rd and 8th chambers of the French Administrative Supreme Court (“CE”) on January 26th, 2021, No. 438217, SA Vicat
The CE judges that the parent company of a consolidated tax group may rely on special claim period provided for in Section R. 193-3 of the French tax procedure code solely for taxation relating to its own taxable income. Consequently, it is not allowed to dispute, within the special claim period, taxation relating to the taxable income of another company of the consolidated tax group, as long as it has not itself been subject to a tax reassessment. The decision would have been different if the tax reassessment notice had involved reassessment on the overall taxable income.
• Tax audit: data published by online platforms may be used for a trial period – Decree No. 2021- 148 on February 11th, 2021
The French Tax Authorities (“FTA”) are authorized, for an experimentation on a period of three years, to collect and use, through automated processing, the contents made freely and manifestly accessible to the public by online platforms’ users in order to identify hidden activities and false tax residence.
III. INTERNATIONAL TAXATION
• Compliance of the French domestic law with the free movement of capital: France is given notice to amend its rules on withholding tax on dividends paid to insurance companies settled in other member states of the European Economic Area (“EEA”) – European Commission’s formal notice on February 18 th, 2021
The European Commission considers that there is an unjustified difference of treatment between insurance companies established in France (exempted from withholding tax on dividends paid to policyholders) and insurance companies established in another EEA state (required to withhold tax on such dividends) and requests France to amend its domestic law.
• France-Luxembourg tax treaty: the FTA publish their guidelines – BOI-INT-CVB-LUX, on February 23th, 2021
FTA’s guidelines regarding tax treaty concluded between France and Luxembourg on March 20th, 2018 (entered into force on August 19th, 2019) are published (BOI-INT-CVB-LUX-2021/02/23).
• Non-Cooperative States and Territories (“ETNC”): ETNC list is updated – Ministerial Order No. ECOE2036563A on February 26th, 2021, published on March 4th, 2021
The ETNC list is updated and now includes the following States and territories: British Virgin Islands, Anguilla, Panama, Seychelles, Vanuatu, Dominica, Fiji, Guam, American Virgin Islands, Palau, American Samoa, Samoa and Trinidad and Tobago. The Bahamas is no longer on the ETNC list.
IV. INDIVIDUAL TAXATION
• Dutreil scheme: the effective management (“animation”) of the group must be sufficiently prepared beforehand – Decision of the 1st chamber of the Administrative Court of Riom on January 26th, 2021, No. 19/01179
The effective management of the group must be prepared sufficiently in advance of the deed of transfer, so as to be able to demonstrate the effectiveness and reality of the Dutreil scheme in order to enable the application of the favorable regime provided for in Section 787 B of the French Tax Code.
• PUMA litigation: the French Civil Supreme Court refuses to invalidate the late call for assessment of the PUMA tax – Decision of the 2nd civil chamber of the French Civil Supreme Court on January 28th, 2021, No. 19-25.853
The French Civil Supreme Court considers that URSSAF’s failure to comply with the deadline, set on November 30th, does not invalidate the late call for levies but “has the sole effect of postponing the period after which the levy becomes payable”, without specifying the duration expected.
• Property tax: a real estate, even unusable, is taxable unless it is completely demolished or if the structure is damaged – Decision of the 9th and 10th chambers of the CE on February 3rd, 2021, No. 434120, SCI La Reine Blanche
The CE judges that it is not sufficient for a real estate to be renovated in order to be exempted from property tax on built-up properties, even if this renovation work makes it unusable, unless it is completely demolished or if such work affects its structure, so that it is unsuitable for any use.
• Covid-19: FTA’s guidelines regarding tax credit introduced in favor of lessors granting rent waivers are published – BOI-DJC-COVID19-10-10 on February 25th, 2021
The FTA comment the tax credit introduced in favor of lessors granting rent waivers to certain lessee companies for the month of November 2020 and specify, in particular, that it may apply to so-called “Schumacker” non-residents.
• Managing holding company: the French Civil Supreme Court clarifies the concept of managing (“animatrice”) holding company – Decision of the commercial chamber of the French Civil Supreme Court on March 3rd, 2021, No 19-22.397
The French Civil Supreme considers that a holding company that does not control any operating subsidiary cannot be qualified as “animatrice”. Furthermore, holding companies must be effectively and actively involved in the group’s policy in order to be considered as “animatrice”. These principles could be transposed to the exemption of French real estate wealth tax for professional real estate properties as well as to the partial exemption of gift/inheritance tax in case of a Dutreil scheme.