While the abuse of law (abus de droit, « AoL ») has been in place for many years under French tax law, the General Anti-Abuse Rule (« GAAR ») has only been introduced into UK tax law very recently. The present French Tax Update thus extends its reach beyond French tax law, and compares the two, focusing on (i) their scope, (ii) the applicable procedure, and (iii) the way each of the GAAR and AoL operates in practice.
WHAT IS THE LEGAL BASIS OF GAAR/AOL?
GAAR: The GAAR is a creature of statute and is found in the Finance Act 2013 (Part 5 and Schedule 43). In addition, these statutory provisions are supplemented by Tax Authority (« HMRC ») guidance. The purpose of the guidance is to give a broad summary of what the GAAR is designed to achieve in a non-legal style and also to be an aid to the interpretation and application of the GAAR by discussing its purpose and giving various examples.
All but the procedural section of the guidance has been approved by the GAAR Advisory Panel (an independent panel of voluntary advisers appointed by the Commissioners of HMRC, « GAAR Advisory Panel »). Unusually for UK tax legislation, the statutory provisions explicitly recognize that the guidance is an aid to the interpretation of the GAAR, and any court or tribunal considering the application of the GAAR has to take the Advisory Panel approved parts of the guidance into account. Strictly speaking, a court or tribunal does not have to take the procedural aspects of the guidance (as these are not approved by the Advisory Panel) into account, but can do so if it so wishes.
AoL: As is the case with the GAAR, the AoL is a creature of statute and is specifically provided for by several Articles of the French Tax Procedure Code (Livre des procédures fiscales, « FTPC »).
Article L. 64 of the FTPC, which defines the AoL, was last modified in 2008 in order to take into account a case whereby the Administrative Supreme Court (Conseil d'Etat, « ASC ») held that the AoL procedure could apply to situations which did not technically fall within the ambit of the then-applicable FTPC Article, but could nevertheless be caught by the anti-fraud principle that is generally applicable under French law. As a result, such general anti-fraud principle is now in part contained within the AoL definition (please see « What are the financial consequences attached to the GAAR/AoL? » below).
Unlike the GAAR, however, the AoL definition has now been reviewed by French tax courts for many years. As a result, case law is a very important item in the field of the AoL, and may substantially enlighten the application of the AoL procedure with respect to certain specific transactions (e.g., for recent illustrations, management packages within LBO-type transactions, estate planning, tax-optimized structured financings, etc.). On the other hand, official administrative guidelines issued by the French tax authorities (« FTA ») rarely provide any details with respect to the AoL, and rather refer, in some cases, to case law rendered by the ASC.
WHAT IS THE BASIC DEFINITION OF GAAR/AOL?
GAAR: The GAAR is designed to counter « abusive tax arrangements ». It is intended to catch transactions where the tax outcome does not reflect the economic position of the taxpayer and a favorable tax position has been achieved by applying the tax legislation in a manner, or to a set of circumstances, which was not intended or contemplated when the legislation was drafted. Arrangements constitute « tax arrangements » if the obtaining of a tax advantage was the main purpose or one of the main purposes of the arrangement. Tax arrangements are « abusive » if they « cannot reasonably be regarded as a reasonable course of action » (so-called double reasonableness test).
The GAAR covers specific taxes only, but its reach extends beyond business taxes, the relevant taxes being income tax, corporation tax, capital gains tax, petroleum revenue tax, inheritance tax, stamp duty land tax and the annual tax on enveloped dwellings. (It should be noted that VAT is not covered by the GAAR nor are any other EU-derived taxes—this is because the EU doctrine of abuse of law applies to these taxes.) Examples of indicators of abuse are given in the statute, but this is not an exhaustive list. Essentially, the examples relate to situations where the amount brought in to charge to tax is less than the « economic profit ».
The GAAR is new legislation and has not yet been tested in the courts. When a case is brought, it will be interesting to see to what extent decisions in previous tax anti-avoidance cases will be considered by the tribunal or court. It is generally thought HMRC will seek to apply the GAAR particularly in situations where previously taxpayers have succeeded because the legislation is very formulaically drafted, and if the arrangements fall within the strict formulaic approach of the statutory provisions, albeit in a very contrived way, the courts cannot override this. The GAAR may well enable HMRC to succeed in such situations.
AoL: Unlike the GAAR, the AoL applies to all French taxes without exception.
The procedure essentially enables the FTA to disregard any given legal agreement between the parties and, accordingly, to tax the corresponding transaction on the basis of its actual substance. The AoL potentially applies to two types of situation:
- The first situation is one where the relevant transaction is analyzed as being a « legal fiction », i.e., a sham. In practice, this qualification is rarely used by the FTA as the taxpayers generally follow the relevant rules to make sure of the legal effectiveness of their transactions.
- The second situation is where a given transaction is purely tax motivated, and the parties have obtained the tax benefit by a literal application of the relevant rules while disregarding the spirit of such rules. This second possibility is fairly similar, in spirit, to the basic definition of the GAAR. In practice, it is the one which is most commonly used by the FTA to challenge the transactions they consider as abusive. One famous case law was that of the so-called « Bank of Scotland case » where a UK tax resident bank was receiving French-sourced dividends and claiming, under the then-applicable UK–French tax treaty, the tax credit which was at the time attached to these dividends. The UK bank also had a separate arrangement with the US parent of the French entity (distributing the dividends) whereby, in the absence of dividends, the UK bank was receiving an equivalent amount from the parent. The FTA challenged the transaction, and won the case before the ASC, by arguing, essentially, that while the UK bank was formally entitled to the tax credit under the treaty, the substance of the transaction was such that only the US parent was effectively exposed to the risk of dividends ; since the US parent would not have been entitled to the tax credit, under the then-applicable US–French tax treaty, the transaction was purely tax motivated in violation of the spirit of the UK–France tax treaty.
It is interesting to note two points:
- First, the « pure tax motivation » test is not applied strictly by the courts, i.e., if there is some non-tax motivation to a transaction but such motivation is rather de minimis compared to the tax benefit, the transaction may still be successfully challenged by the FTA.
- Second, the French Parliament proposed, within the frame of the Finance Law for 2014, to enlarge the scope of the AoL procedure by replacing the « pure tax motivation » test by a « principal tax motivation » test. Such proposal was adopted by the French Parliament but invalidated by the Conseil Constitutionnel on the basis that the proposed new test would have provided to the FTA a significant margin of discretion in the application of the AoL procedure, and that, taking into account the financial consequences of a successful challenge under the AoL procedure (please see « What are the financial consequences attached to the GAAR/AoL? » below), such a wide definition would have been contrary to several French constitutional principles.
WHAT ARE THE MAIN STEPS FOR THE APPLICATION OF THE GAAR/AOL?
GAAR: There are essentially two ways in which tax advantages arising under abusive tax arrangements can be countered under the GAAR.
First, self-assessment applies to the GAAR, which means that if the taxpayer has obtained a tax advantage as a result of entering into an abusive tax arrangement, then the taxpayer must make adjustments on a « just and reasonable basis » to counter that tax advantage in his tax return. It is unlikely, however, that a taxpayer would enter into a scheme knowing it to be abusive, and so it is unlikely that taxpayers will make such GAAR adjustments voluntarily.
Secondly, HMRC can seek to apply the GAAR, and this is likely to be the more common approach. To do so, HMRC must follow the statutory procedures (as set out in Schedule 43 to the Finance Act 2014) which are designed as a safeguard for the taxpayer. HMRC has to appoint a designated officer for the purposes of the GAAR who will be a senior officer in HMRC. The first stage, therefore, will be for the taxpayer's inspector to refer the case to the designated officer, and it will be discussed internally at a high level in HMRC. If the designated officer considers that a tax advantage has arisen from abusive tax arrangements, then a written notice has to be sent to the taxpayer. The notice must specify the arrangements and the tax advantage and explain why the designated officer considers that a tax advantage has arisen from abusive tax arrangements, set out the counteraction that the officer considers ought to be taken and inform the taxpayer of the next steps. The taxpayer then has 45 days to send written representations in response to the notice to the designated officer. This period can be extended at the written request of the taxpayer. If no representations are made by the taxpayer, then the designated officer must refer the matter to the GAAR Advisory Panel which (as mentioned in « What is the legal basis of GAAR/AoL? » above) is a panel established by HMRC for the purposes of the GAAR but which does not contain any HMRC personnel. If representations are received from the taxpayer, then the designated officer has to consider them. If, notwithstanding the representations, the officer still feels that the tax advantage ought to be counteracted under the GAAR, then he must refer the matter to the GAAR Advisory Panel, giving them a copy of the taxpayer representations. The designated officer must also tell the taxpayer that the matter has been referred to the Advisory Panel and send the taxpayer any comments which he has sent to the GAAR Advisory Panel on the taxpayer's own representations (if any). Once the taxpayer has received this notice from the designated officer, the taxpayer has 21 days to send the GAAR Advisory Panel written representations about the comments which the designated officer has made. Again, this 21-day period can be extended by the GAAR Advisory Panel upon the request of the taxpayer. Any representation made to the GAAR Advisory Panel by the taxpayer must also be copied to the designated officer. If the taxpayer has not made any representations to the designated officer, the designated officer may subsequently comment on any representations the taxpayer makes to the GAAR Advisory Panel.
Where the matter is referred to the GAAR Advisory Panel, the Chairman of the panel must arrange a sub-panel of three members of the Panel. This sub-panel does not need to include the Chairman. The sub-panel can call for further information from the taxpayer or the designated officer or both, and any information provided by one must be copied to the other. The sub-panel must produce an opinion notice, but members do not need to form a unanimous view, and one, two or three opinion notices can be given. These notices must be given to both the designated officer and the taxpayer. The opinion, which must be reasoned, can either state that the entering into and carrying out of the tax arrangements is a reasonable course of action or that it is not a reasonable course of action or that it is not possible on the information available to reach a view on the matter.
Once the designated officer has received the notice or notices from the Advisory Panel, he must give the taxpayer written notice setting out whether the tax advantage arising from the arrangements is to be counteracted under the GAAR or not. If it is to be counteracted, it must also set out the adjustments required to give effect to the counteraction and any steps that the taxpayer is required to take. HMRC is not precluded from continuing a case in light of an opinion from the Advisory Panel that the arrangements are reasonable, but HMRC would need to give very careful thought to its reasons for continuing and be sure that the decision to take action was properly considered within HMRC.
AoL: Within the frame of a tax audit, the FTA may use the AoL procedure in order to disregard and/or recharacterize a given transaction. The taxpayer would typically be informed of the FTA's intentions during the audit itself or at the very end thereof, when the reassessment proposal (proposition de rectification) is notified to the taxpayer.
Unlike with the GAAR, there is no possibility for a self-assessment of the AoL procedure. The FTPC, however, provides for a preapproval procedure whereby a taxpayer, before entering into a given agreement or transaction, may provide to the FTA a written request containing the full set of relevant facts and circumstances. If the FTA do not revert within six months, and provided the written request did contain all relevant information, the AoL procedure will not be applicable with respect to the relevant agreement or transaction. If the FTA do revert within six months, they will be bound by its position (i.e., if the FTA do not object, they will not be able to use the AoL procedure with respect to the relevant agreement or transaction).
After it has received the reassessment proposal, the taxpayer may then provide its observations by formally answering the reassessment proposal. Several written exchanges may then follow, and the taxpayer may inter alia request, still within the frame of the administrative procedure, to present its case before the tax inspector in charge of the tax office which proposed the reassessment, and/or the tax inspector in charge of the relevant geographical area. If, at the end of such administrative procedure, the FTA maintain its intentions to apply the AoL procedure, either the taxpayer or the FTA may solicit the opinion of the Committee in charge of AoL matters (Comité de l'abus de droit fiscal, « AoL Committee »).
The AoL Committee is an independent body whose object is to issue nonbinding advisory opinions in relation to specific situations in respect of which an AoL procedure is ongoing. Similar to the GAAR Advisory Panel, the AoL Committee does not contain any FTA personnel, and its members are in principle three judges from the ASC, a university professor, a tax lawyer, a public notary, and a chartered accountant. The opinions issued by the AoL Committee are in practice closely followed as they are generally viewed as influential on both practitioners and tax courts (inter alia because of the qualifications of the AoL Committee members). The way the AoL Committee participates in the AoL procedure is relatively similar to the way the GAAR Advisory Panel participates in the GAAR procedure, except that (i) its intervention is not mandatory (e.g., should neither the taxpayer nor the FTA solicit its opinion), (ii) its opinion is the unanimous view of its members (it is not possible for the AoL Committee to form dissenting opinions as is the case with GAAR Advisory Panel sub-panel members), and (iii) it has an actual consequence on the subsequent procedure as it shifts the burden of proof (i.e., if the AoL Committee sides with the FTA, the taxpayer has to demonstrate that the transaction at hand does not amount to an AoL, and vice versa).
As with the GAAR, the FTA are not precluded from continuing a case in light of any opinion from the AoL Committee, and may proceed to disputing their case before a tax court. The opinions issued by the AoL Committee are published by the FTA, but the FTA do not provide comments in connection therewith (except that they decide to either follow the opinion of the AoL Committee or disagree with them), and usually only comment ASC case law within their official guidelines.
WHAT ARE THE FINANCIAL CONSEQUENCES ATTACHED TO THE GAAR/AOL?
GAAR: There is no specific penalty regime applying to the GAAR. However, as the GAAR is subject to self-assessment, the normal penalty regime in respect of inaccurate self-assessment returns will apply. Penalties can be levied if an inaccuracy in a return was careless, deliberate or deliberate with concealment. The penalties are 30% of the potential lost tax revenue where the error in the return was careless, 70% where it was deliberate and 100% where deliberate with concealment. However, the fact that HMRC has made a successful challenge under the GAAR does not in itself indicate that the self-assessment was inaccurate and penalties are due. Interest is payable at the rate of 3% on any late paid tax.
AoL: As with any other reassessment, the relevant taxpayer would be liable, inter alia, for the avoided tax and the interest for late payment (currently 4.8% per year). Contrary to the GAAR, however, there are two sets of rules which are specific to the AoL:
- One is that, on top of the tax and the related interest, the relevant person is liable to a penalty of 40% or 80%. The 80% penalty applies where the relevant person is the principal initiator or the principal beneficiary of the relevant transaction, and the 40% rate in other cases. It should be noted that, according to the FTA, the « principal initiator » and the « principal beneficiary » tests are not based simply on the economic profit derived by the relevant persons, but rather on the aggregate facts regarding the implication of these persons in the set up and functioning of the relevant transactions.
- The other is that the AoL legislation includes a so-called « party to the transaction » provision whereby any party which has signed the legal documentation (of the challenged transaction) may be sued for the payment of interest and penalty (but not the principal of the tax). It is important to note that the above joint liability is not a secondary one, i.e., the FTA may directly sue the relevant person without trying first to collect from the taxpayer. Also, the provision applies to both residents and nonresidents of France.
ARE THERE ANY OTHER CONSEQUENCES TO THE APPLICATION OF THE GAAR/AOL?
GAAR: A taxpayer can appeal to a court or tribunal against a decision by HMRC to counteract a tax advantage under the GAAR, and the burden of proof is on HMRC to show (i) that there is a tax advantage arising from abusive tax arrangements and (ii) that the proposed counteraction of the tax advantage is just and reasonable. This is different from most tax appeals where the burden of proof in an appeal is on the appellant. The standard of proof is the normal civil standard of proof, namely the balance of probabilities. In determining any issue in connection with the GAAR, a court or tribunal must take into account the approved guidance on the GAAR and any opinion of the Advisory Panel about the arrangements. In addition, the legislation specifies that the tribunal or court may, but does not have to, take into account guidance, statements or other material (whether of HMRC, a Minister or anyone else) that was in the public domain at the time the arrangements were entered into or evidence of established practice at the time. This is in contrast to the general case law rule where reference to parliamentary material as an aid to statutory construction is not usually permissible.
There are no criminal procedures expressly linked to the GAAR. However, there are two common law offenses with which promoters and participators in fraudulent schemes can sometimes be charged, namely, the offense of cheating the public revenue and conspiracy to cheat. If found guilty, the parties can suffer custodial sentences as well as fines.
In addition, if a taxpayer has suffered a GAAR counteraction, this can have consequences in areas such as contract procurement as it will be an « occasion of noncompliance » (please see « How effective has the GAAR/AoL been? » below).
AoL: As with the GAAR, a taxpayer can appeal to a tax court against a decision by the FTA to apply the AoL procedure. Depending on the opinion issued by the AoL Committee, the burden of proof will be either on the taxpayer or on the FTA (if the relevant case has not been reviewed by the AoL Committee, the burden of proof is by default on the FTA). Contrary to what applies under the GAAR procedure, a tax court does not have to take into account the opinion issued by the AoL Committee (although it may have great influence in practice), and any AoL-related litigation is subject to the standard tax litigation rules (e.g., tax court judges may freely refer to any relevant statute or previous case law, it being noted that parliamentary debates are of particular relevance since the 2008 modification of the AoL definition (please see « What is the legal basis of GAAR/AoL? » above)).
Quite similarly to the GAAR, in some rare cases, it should also be noted that an AoL procedure could give rise to a criminal procedure for tax fraud. Under French law, the AoL procedure is not a criminal procedure per se, and tax fraud is an autonomous criminal offense. A procedure for tax fraud is therefore subject to French criminal law, and the ongoing tax audit, procedure or dispute, if any, does not bind the criminal procedure (and vice versa). Although criminal tax fraud cases appear to be fairly rare in practice, it should be noted that the corresponding legislation has been substantially built up in the past few years.
HOW EFFECTIVE HAS THE GAAR/AOL BEEN?
GAAR: As the GAAR has only been on the statute books for eight months, no cases have yet to be brought. However, the application of the GAAR can have knock-on consequences, not only to the taxpayer immediately concerned. In the recent Budget (19 March 2014), two new pieces of anti-avoidance legislation have been introduced which will take effect from July this year. Normally, if a taxpayer is in dispute with HMRC over a tax advantage, the taxpayer can include the tax advantage in his initial self-assessment and so reduce his tax liability until such time as the dispute is settled. From July onward, where a counteraction has successfully been made in a similar scheme under the GAAR, the taxpayer will have to pay the disputed tax, pending resolution of the dispute. Similarly, if an issue is under dispute and a court or tribunal has decided in favor of HMRC under the GAAR in respect of a similar scheme, the taxpayer will have to pay the disputed tax up front and be encouraged to settle in line with the decision.
In other areas, too, the GAAR is being applied as a deterrent. For example, potential suppliers to central government have to self-certify their recent tax compliance history as part of the selection stage in procurement procedures. A successful HMRC action under the GAAR (or certain other anti-avoidance legislation) is regarded as an occasion of noncompliance and is a valid reason for not awarding the contract. Furthermore, there is a contractual obligation on a supplier to keep the contracting authority notified of any changes in relation to tax compliance and if noncompliance is disclosed, or occurs without disclosure, the contracting authority can terminate the contract.
AoL: As the AoL procedure has been in place for much longer than the GAAR, the corresponding body of case law is much more significant. Over the years, the FTA have notably been winning certain AoL cases before the relevant courts (e.g., the Bank of Scotland case discussed in « What is the basic definition of GAAR/AoL » above).
Obviously, the FTA have been also on the losing side of other cases, including in situations where they believed they had a good case. One good example was the so-called « AXA case », where the FTA were challenging certain lending of French shares around dividend payment dates on the basis that they were purely motivated by the transfer of tax credit from loss-making entities (not capable of using tax credits) to tax positive entities ; the Conseil d'Etat decided that the borrower should be viewed as the effective beneficiary of the dividends and entitled to the tax credit.
It is fair to say that the AoL remains a heavy procedure, and that the high evidence threshold means that the FTA may have a pretty difficult time succeeding in the application of the AoL. Hence, the tendency, in recent years, to multiply specific anti-abuse rules (while the UK added the GAAR to preexisting specific anti-avoidance rules, and even continues to introduce new pieces of specific anti-avoidance rules). The FTA are also using the AoL to frighten taxpayers with the objective that the latter would agree to do a deal with the FTA rather than go before the courts.
HOW WOULD THE GAAR/AOL APPLY WHEN THERE EXISTS A SPECIFIC ANTI-AVOIDANCE PROVISION?
GAAR: The GAAR is designed to counter abusive tax avoidance and therefore even if there is relevant specific targeted anti-avoidance legislation, but the arrangements do not fall foul of this legislation, it will still be possible for HMRC to seek to apply the GAAR. The GAAR provisions are expressed to take priority over any other legislation applying to the taxes covered by the GAAR. This is the case even if the other legislation expressly states that it takes priority over everything else. We are still seeing new targeted anti-avoidance legislation being introduced, post GAAR, because HMRC feels that the GAAR can only be applied to highly egregious schemes and so in their view there is still a need for targeted anti-avoidance legislation in order to protect tax revenue.
AoL: Even though the AoL procedure has been in place for more than 30 years, several tax regimes recently enacted by the French Parliament now provide for their own anti-avoidance provisions. As is the case with GAAR, the interplay of such provisions with the AoL procedure is not dealt with at all under French tax law (be it within the provisions organizing the AoL procedure or within the relevant anti-avoidance provisions). There has however never been any clear indication from the FTA that the AoL could be applied only to highly egregious schemes.
While the AoL procedure is technically applicable in addition to specific anti-avoidance provisions, one could nonetheless argue that the more precisely drafted and accompanied with anti-avoidance provisions a given regime is, the less room should be available for the AoL procedure to apply. With respect to certain tax regimes, it could even be argued that the implementation of a specific anti-avoidance provision could enlighten the application of the AoL procedure with respect to situations which do not fall precisely within the ambit of the relevant anti-avoidance provision. Indeed, one could wonder how the analysis of the legislator intent (please see « What is the basic definition of GAAR/AoL » above) could not be affected by the existence of a specific anti-avoidance rule the scope of which does not encompass the relevant situation.
One good example is the specific anti-tax credit rules where, under certain circumstances, the French taxpayer is denied the benefit of the tax credit attached to certain foreign-sourced passive income (e.g., interest, dividends, etc.). These specific anti-abuse rules are supposed to neutralize certain market transactions (e.g., lending of foreign securities) which were viewed, by the FTA, as being abusive (although they were not that successful in convincing the courts under the AoL). So, if a given transaction gives rise to a tax credit but is not within the scope of the above specific anti-abuse rules, one may take the view that the AoL should not be applicable since the specific legislation defines which transactions should be viewed as abusive.
To the best of our knowledge, no case law has directly addressed such issue. It is thus not possible to exclude that, where a targeted anti-avoidance provision has been adopted, the AoL would still apply in respect of a specific transaction or scheme. One could nevertheless expect that the relevant anti-avoidance provision would then operate as a safe harbor, which could only be superseded by the AoL procedure where the relevant transaction or scheme egregiously bypassed the relevant anti-avoidance provision.
HOW WOULD THE GAAR/AOL APPLY WITHIN AN EU CONTEXT?
GAAR: As the GAAR can only be applied to counter abusive tax arrangements, even if its application in some situations potentially breaches one or more of the fundamental freedoms (such as free movement of people or establishment or free movement of capital), it is likely that such a breach would be accepted as justifiable on the grounds that it is to combat tax evasion. The fact that any counteraction under the GAAR has to be « just and reasonable » should satisfy the European Court of Justice requirement that the restriction is « proportionate » i.e., the breach of the freedom is necessary in order to attain the objective pursued by the GAAR legislation.
AoL: The AoL, like any other French tax provision, has to respect the various freedoms protected under the EU rules (movement of capital, goods, etc.). One good example is that a French taxpaying entity is perfectly free to establish itself in another EU jurisdiction (through a branch or a subsidiary) even if the presence in that EU jurisdiction is purely motivated by a better tax treatment. The only limit is that the substance (in the branch or in the subsidiary) must be enough to back up the stated intention of running a business locally. Should the AoL procedure be applicable, it would in any event have to satisfy, just like the GAAR, the European Court of Justice requirement that the restriction it would constitute in a given situation is « proportionate » to its legislative intent.
The above approach is also reflected in the French CFC rules whereby they are not applicable within the EU unless the relevant transaction is an artificial structure with the objective of avoiding French tax.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.