Movable capital gain in tax deferral: the European Commission defends the French taxpayer!

Olivier Rozenfeld, President of Fidroit, explains how the European Commission defends the French taxpayer on the question of tax deferral of Article 150 OB-Ter of the CGI on capital gains. comment défiscaliser en immobilier
The investigation initiated by the Court of Justice of the European Union seized by two decisions of the Council of State has resulted in a favorable position for taxpayers. They challenged the tax effect of tax deferral schemes of Article 150 OB-Ter of the CGI (born from the contribution of social rights to another company subject to corporation tax) on the methods of taxation. capital gains.
Indeed, the analysis of certain situations can show that in case of exchange and the benefit of a postponement, taxpayers could be penalized.
A long tax paper
The subject of securities trading is the subject of a long tax paper. From a tax relief regime of Article 150-OB, we experienced a significant change in 2014 with the creation of Article 150 OB-Ter which provides for a tax deferral. investissement défiscalisant
The number of transactions challenged by the administration and the courts for reasons of abuse of rights, without any clear solution, led the legislator to legally better mark these transactions with Article 150 OB-Ter. This article “anti-fraud” allows taxpayers to know precisely the path to respect not to attract the wrath of the tax authorities.
In the latest version of this new article of the CGI, the tax rules want the tax rate to be fixed on the day the exchange of securities is made. Also, in the event of a favorable development of the capital gains taxation system, for example, the transferor of securities, which is also the beneficiary of the transfer, could be excluded.
In this context, the effect of the tax deferral is contrary to the tax neutrality requirement of securities exchange transactions.
The European Commission considers that the imperative of fiscal neutrality implies that a securities exchange transaction be considered in the fiscal field as a so-called “infill” operation. In this context, it can not have any tax effect on the taxation of the capital gain at the end of the deferral period. Report which falls in particular with the transfer of the securities obtained from the exchange transaction.
It must be concluded that the benefit of the tax deferral must not be liable to result in taxation different from that which would have applied to the capital gain on the sale in the absence of an exchange. The holding period which conditions the abatement positively affecting the calculation of the capital gain must not then be “broken” by the contribution of securities for example.
Case to closely monitor as this new “turnaround”, which would be initiated by the court of Luxembourg, could then significantly change the rules of the game and the criteria of a good strategic choice …

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