The French Parliament began to debate the Draft on 13th October 2019. You will find below a summary of some of the more notable provisions of the Draft.
1. French tax domiciliation
The Draft is proposing to add new criteria for French individual tax domiciliation, starting in 2019, for:
- Certain executives,
- Entities whose head office is located in France, with an annual turnover exceeding €1 billion1; if the said entities control other entities (within the meaning of the French Commercial Code), their turnover is increased by the turnover of the controlled entities when determining whether the €1 billion threshold is exceeded.
The relevant executives comprise: chairpersons of boards of directors; managing directors; deputy managing directors; chairpersons of supervisory boards; chairpersons and members of executive boards; managers and those performing other similar functions.
If the above conditions are met, the relevant individuals would be deemed to exercise their professional activity principally in France, and, as such, would be viewed as being domiciled in France for French domestic purposes.
However, the above new criteria should not, in most cases, change the situation of the relevant executives for French income tax purposes; indeed, if they are deemed, simultaneously, to be also tax domiciled in another jurisdiction which has a tax treaty with France, their tax residency would be ultimately decided by the tie breakers provided under the treaty.
For example, under the current UK-France tax treaty, when an individual is domiciled in both jurisdictions, the residency would be defined going through the following criteria in that order:
- Jurisdiction of permanent home;
- Jurisdiction of closer personal and economic relations;
- Jurisdiction of habitual abode;
- Jurisdiction of nationality.
Accordingly, in the above example, even if an individual was domiciled in France under the above new criteria, he/she would probably remain a UK resident under the treaty rules.
The new criteria may, however, have other tax implications for individuals (e.g. inheritance tax, etc....).
2. French corporate tax rates and withholding tax rates on French source dividends
The announced reduction in the French basic corporate tax rates has been through a number of modifications, with the essential consequence of slowing down the timing of this tax cut for groups with a turnover exceeding €250 millions (Significant Groups).
The Draft proposes yet another modification, with the following consequences for when the new rates come into force:
2020: 31% (28% for taxable profits up to €500,000)
2022 and following: 25%
Entities other than Significant Groups
The withholding tax rates applicable to French source dividends paid to non-residents have been confirmed separately as follows (applicable in the absence of any other available exemption or reduction under a relevant tax treaty):
2022 and following: 25%
3. Hybrid Mismatches
The Draft proposes to implement "hybrid mismatch" provisions as defined by the relevant EU directives (Atad 1 as modified by Atad 2) derived from the OCDE guidelines on BEPS, into French tax legislation, starting in general from 1st January 2020.
The relevant mismatches are those arising from:
- Hybrid instruments and entities (including permanent establishments);
- Reverse hybrid entities;
- Situations of dual residency.
These rules are generally applicable in the context of "associated enterprises" (as defined by the Draft), and between head offices and their permanent establishments.
However, they also apply to so-called "structured arrangements" with non-associated enterprises, where either the relevant mismatch is priced in the arrangement, or the arrangement has been designed to produce the mismatch and the taxpayer cannot evidence that it (or an associated enterprise) was not aware of the mismatch and did not benefit from it.
3.1 Hybrid instruments and entities (including permanent establishments)
Payments in respect of a hybrid instrument
The typical situation is where a given instrument (debt, equity, derivative) is treated differently, taxwise, in two relevant jurisdictions, e.g. as deductible interest on a loan in the jurisdiction of the payer, and exempt2 distributions on an equity instrument in the jurisdiction of the payee.
The term "hybrid instrument" also includes the so-called "hybrid transfer" which is an arrangement to transfer a given financial instrument and where the underlying return of the said instrument is viewed, for tax purposes, as derived simultaneously by more than one party (e.g. a repo of shares, where one party is deemed to receive exempt dividends while the other party is deemed to pay deductible interest, because each jurisdiction has a different view on the beneficiary of the dividends).
No hybrid transfer exists where i) it is made by a person whose professional activity consists of buying or selling financial instruments on a regular basis for its own account, and ii) the transfer is effected as part of its normal activity (other than "structured arrangements" defined above), and iii) the income in respect of the said transfer is included in its taxable income.
In the event of an actual mismatch under a hybrid instrument or a hybrid transfer: i) the deduction of the relevant remuneration will be denied in France (whereas otherwise it would have been deductible in principle), if the payer is a French corporate tax resident, and ii) it will be included in the taxable income of the French corporate tax resident payee (whereas otherwise it could have been exempt under certain conditions).
If a hybrid transfer is devised to reduce the applicable WHT in respect of a payment due on a financial instrument, transferred to various parties, the WHT reduction would apply only up to the pro rata of the net taxable income related to the said payment.
French corporate law includes a number of instruments, such as the so-called "super subordinated securities" (TSS) and bonds which are mandatorily convertible in the shares of the issuer (ORA) which, given their features, may be viewed as equity instruments under the tax laws of another jurisdiction, whereas in France, they are generally treated as debt instruments generating deductible interest. Accordingly, the above instruments [may be caught under] the new hybrid instruments rules, depending on the tax laws of the jurisdictions where the holders have their tax residency.
On the other hand, a French corporate tax resident holding instruments such as TSS or ORAs, would never be entitled to any exemption in respect of the underlying income in the first place, and, accordingly, the hybrid instruments rules should not be applicable in this case.
Payments in respect of a hybrid entity
A hybrid entity is an entity or an arrangement which is viewed as a taxable entity by one jurisdiction, and whose income or expenses are treated by the other jurisdiction as the income or expenses of other person(s). The typical situation is of an entity which is treated as transparent in its jurisdiction of incorporation, while being viewed as non-transparent in the jurisdiction where its majority shareholders or partners are located.
A payment to a hybrid entity may give rise to a deductible item in the jurisdiction of the payer, whereas i) it is not included in the taxable income of the payee given that its jurisdiction of tax residency treats it as transparent, and ii) it is not included in the taxable income of the person(s) with participation in the payee, given that their jurisdiction of residency considers the payee as non-transparent.
In such a case, if the payer is a French corporate tax resident, the deduction would be denied (and the item would be taxed in France if the payee is a French tax resident and the deduction is not denied at payer level).
A payment made by a hybrid entity to a shareholder / partner may give rise to a deduction for the payer under the laws of its jurisdiction of tax residency (i.e. non-transparent), whereas it would not be included in the taxable income of the payee (i.e. the entity would be viewed as transparent and the payment disregarded). In such a case, if the payer hybrid entity is a French corporate tax resident, the deduction of the payment would be denied (and the item would be taxed in France if the payee is a French tax resident and the deduction is not denied at payer level).
Additionally, a payment, expense or loss may result in a double deduction where the hybrid entity is considered as non-transparent in its jurisdiction of tax residency, and as transparent in the jurisdiction of residency of its shareholder / partner. In such a case: i) when the hybrid entity is a French corporate tax resident, the deduction would be denied if the shareholder / partner is a tax resident of a jurisdiction which allows the deduction, and ii) when the shareholder / partner is a French corporate tax resident, the deduction would be denied if the deduction is accepted in the jurisdiction where the hybrid entity is a tax resident.
The double deduction rule would not apply in the case of double inclusion during the same financial year in which the double deduction takes place, or during a financial year starting within 24 months of the end of the financial year of deduction.
Payments implicating hybrid permanent establishments (PE)
These are situations where the commercial activity of an entity in jurisdiction A is treated by jurisdiction B (where the entity's head office is a tax resident) as having a PE in A, while A considers that the head office has no PE in A, and where these approaches result in an exemption in both jurisdictions A and B.
In the above case, a payment made by a given payer to that entity would not be included in either the taxable income of the PE in A, or of the head office in B; when the payer is a French corporate tax resident, the deduction would be denied.
Similarly, a payment between a PE in one jurisdiction and its head office in another jurisdiction (or another PE of the head office in another jurisdiction) may be deducted at PE level while being disregarded at head office (or PE) level; when the PE is French, the deduction would be denied.
Finally, if a payment to the non-French PE of a French corporate tax resident is not taxed in the jurisdiction where the PE is located, this payment would become taxable at the head office's level in France.
Payments implicating imported hybrid mismatches
The imported hybrid situation arises where the effect of a hybrid mismatch between parties located in third countries is shifted to an EU Member State (in this case France), through the use of a non-hybrid instrument, so that a deductible payment made by a French corporate resident entity may be used to fund deductible payments under a hybrid mismatch.
In this case, France would deny the deduction for a payment made by a French corporate tax resident, if the income corresponding to such payment is set off, directly or indirectly in the relevant jurisdiction, against a deduction which arises under a hybrid mismatch resulting in a double deduction or a deduction without inclusion between the relevant parties.
3.2 Reverse hybrid entities
The reverse hybrid rule, to be applied from 1st January 2022, refers to the situation where: i) an entity is incorporated or established in an EU Member State (in this case France) which deems the entity to be transparent, and ii) the jurisdictions of its associated enterprises, which own together, directly or indirectly, at least 50% of the capital or the voting rights, etc... in the entity, qualify the entity as non-transparent, and iii) the approaches under (i) and (ii) result in a deduction / non-inclusion.
In this scenario, the French entity would be treated as fully taxable in France (either at the level of the entity or at the level of its shareholders / partners).
As an exception, the reverse hybrid rule would not apply when the entity is organized as a collective investment fund with a diversified portfolio and subject to the rules for the protection of investors (e.g. certain French SICAVs, FCPs).
3.3 Dual residency
This situation arises where an entity is viewed as being a resident of two jurisdictions (including France), with the consequence that any payment, expense or loss may be deducted twice in France and in the other jurisdiction.
In this case, France would deny the relevant deduction, unless, inter alia, i) either the relevant item is included in the taxable income of the beneficiary, or ii) the other jurisdiction is an EU Member State which refuses the deduction and the tax treaty between France and that Member State designates France as the jurisdiction of tax residency of the entity.
NB: Simultaneously with the entry into force of the above hybrid mismatches rules, the Draft proposes to eliminate a similar existing rule whereby the interest payments of a French borrower are not deductible if the said interest is not taxed in the hands of an associated lender at a rate equal to at least 25% of the relevant French corporate tax rate.
1 During the Parliamentary debates, it has been proposed to reduce the threshold to €250 million. ↩
2 Or entitled to a reduced corporate tax rate, or to a tax credit or a tax refund (other than a tax credit representing a withholding tax at source). If the income is included in the taxable income of the payee, the inclusion must take place in respect of a financial year which starts within 24 months of the end of the financial year during which the amount is deducted in the other jurisdiction. ↩
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