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NEWSLETTER June 2008 N°1 Summary

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NEWSLETTER June 2008 N°1 Summary NEWSLETTER June 2008 N°1 Summary REAL ESTATE TRANSACTIONS-TAX PLANNING REAL ESTATE TRANSACTIONS Individual income tax- Purchase of the principal residence TAX PLANNING Purchase of a secondary home in France by foreign citizens settled in Monaco Individual income tax - Purchase of the principal residence Sale of a French real estate property indirectly held through a foreign vehicle Loan interest paid by a taxpayer to finance the purchase of his French 3% tax reform and its impact on offshore trust principal residence will have the benefit of a tax credit, whether French trust (Fiducie) and real estate transactions the purchase is direct or indirect through an SCI, subject to the following conditions: FAMILIES New French inheritance and gift tax provisions - the provision only applies to contracts signed after May 6, 2007; - applicable to both direct and indirect (namely via an SCI) CITIZENS OF THE WORLD investment; Stock options or the best manner to compensate - the loan must be granted by a EU Bank subject to fixed or executives and employees variable rate interest ; French Wealth tax new incentives - an indefinite loan, a “ prêt in fine”, is also allowed ; French tax cap amended - the loan must follow the special French legal provisions relating to loans under the French Consumer Code. «The purchase of the MONEGASQUE CORPORATE ISSUES principal residence now Disadvantages of branches against subsidiaries : garnishee The benefits of this provi- gives rise to a tax credit...» proceedings out in France on assets held in a foreign country sion will also apply if the Contract of employment in Monaco at a glance loan is to refinance an existing loan. However, the tax credit will Non-commercial partnerships in Monaco : easier rules apply only to the first five monthly instalments. It is effective for interest paid from September 1st, 2007. on insolvency Bénédicte VINOT Simon HUXFORD - Solicitor Phone : + (377) 93 25 00 52 Phone : + (377) 93 25 85 25 Fax : + (377) 93 25 58 92 Fax : + (377) 93 25 79 58 [email protected] [email protected] NEWSLETTER june 2008 N°1 Amount of the tax credit: In a recently reported decision, the court of appeal in Marseille - First monthly payment: 40% of the interest paid up to € 7,500 held that the European principles of non discrimination and free for a married couple, i.e, maximum € 3,000 tax credit which may movement of capital, prevented France from applying this tax to be offset against the couple’s income tax bill; Portuguese and Belgian citizens residing in Monaco. - The following four monthly payments: 20% of the interest paid up to € 7,500 for a married couple, i.e, € 1,500 tax credit. The latter two decisions represent a significant change, as the de- cision can be applied to every European citizen residing in Monaco. The situation for non EU citizens remains uncertain and considera- French tax issues on the purchase of a second home in France ble care is required when contemplating an investment in French by foreign citizens settled in Monaco real estate. Foreign citizens who settle in Monaco are generally attracted by the favourable tax regime, but care is needed when deciding to The sale of a French property held through a foreign vehicle is buy, rent, or generally hold a second home in France to avoid fal- no longer liable to transfer tax ling within the French tax net. The French administrative court of Nice recently held that the Under Article 164 C of the French Tax Code an individual who is transfer of shares in a Monegasque SCI “Société civile immobi- not French tax resident and owns a property in France, whether lière” that owned a property in France was not liable to pay French directly or indirectly, for instance via an SCI, is liable to French 5% transfer tax (previous- income tax. The tax is calculated on the basis of a notional income ly 4,80%), as the share «The sale of a non French equal to three times the rental value of their residence in France, purchase agreement was company owning real estate unless the actual income in France is greater. signed and registered in in France is free of transfer Monaco. tax...» This provision does not apply to individuals resident in countries that have signed a double tax treaty with France (there are over The French tax authorities asserted that such a share sale was, ef- 100 such treaties at the moment). While there is a treaty between fectively, a direct sale of the property itself, thus requiring the pay- France and Monaco it is not considered as a treaty preventing dou- ment of French transfer tax, pursuant to Article 726 of the French ble taxation according to traditional OECD standards. For Monaco Tax Code. The court disagreed, considering the transfer of shares residents this provision may influence a decision to purchase pro- to be a transfer of intangible movable rights and subject to the perty in France and their tax planning. principle of the territoriality of tax laws. French and Monegasque citizens who are resident in Monaco The French tax authorities have not appealed the decision. are exempt providing they hold one property within the “PACA” region around Monaco; As a consequence, and subject to the overriding condition that the «The purchase of a second though unfortunately this sale both occurs and is also registered outside of France, every home in France by Mongas- exemption does not apply sale of French real estate through a foreign dedicated vehicle, que residents may entail to foreign citizens resident would escape French transfer tax. French income tax...» in Monaco. Even though one must remain careful with such a tax planning This law has come in for some criticism and a number of actions tool, the “look-through” approach of the French tax authorities have been brought before the French administrative courts. The now seems to have encountered strong opposition. reported judgements have held that the non-discrimination clause in the tax treaties between France and (i) Italy, (ii) the United Kin- gdom, and (iii) Russia, prevent France from apply this taxation to The French 3% tax reform and its impact on offshore trust nationals of these states who are Monaco resident. In a decision of October 11, 2007 (so-called the «Elisa» case), the The non-discrimination clause usually provides that a citizen of ECJ held that the existence of an additional condition to be met by a country party to the tax treaty cannot be taxed differently to non-residents, as compared with French residents, to be able to citizens of the other party to the treaty. However, in other cases benefit from an exemption from French 3% tax, was incompatible involving US and Swiss citizens the courts held that the wording with the free movement of capital. of the non-discrimination clause in the French-US and the French- Swiss tax treaties did not prevent France imposing this tax on Further to this decision, the French Parliament adopted an amend- American and Swiss citizens residents in Monaco. ment to the Amended Finance Act 2007 aimed at reforming the 3% annual tax. P.2 NEWSLETTER june 2008 N°1 The main changes to the 3% tax regime are the following: transaction with neutral tax impact, with the result that the es- • A clearly specified field of application specifically aimed at trusts tate placed in the hands of the “Fiducie” will be considered to (fiducies or comparable institutions). remain the property of the settlor. We consider that the French tax administration will have to find solutions to this difficulty if the • Application of an exemption threshold in two cases: “Fiducie” is to be attractive. - Companies owning directly or indirectly an interest valued at less Nonetheless, the “Fiducie” is considered as an attractive manner than € 100,000 or 5% of the fair market value of real estate, are to procure a real estate security in real estate transactions as the now exempt from the 3% tax; French civil law entitles the allocation of real estate property title as a security interest. - A shareholder who owns less than 1% of the shares in a com- pany that falls within 3% tax, is no longer obliged to file a tax Furthermore, a certain flexibility makes this nature of security in- return with details of his shareholding. This measure is good news terest attractive : trust, rights and security interests may be trans- for investment funds. ferred to the French trust and debts may be also transferable. • Direct extension of the exemption to French SPPICAV and foreign equivalent (REITs) and to companies directly and indirectly fully owned by a listed company. FAMILIES • Identical treatment for French companies and legal entities ha- ving their headquarters in an EU Member State with regard to exemption from filing. New French inheritance and gift tax provisions These new provisions came into force on January 1st, 2008. • There is now a complete exemption from inheritance tax on the succession between spouses (including life insurance indemni- ties). The French trust (the “Fiducie”) and real estate transactions • Gift tax: Changes in tax rebates on gifts made after August 22, The French Law n° 2007-211 of 19 February 2007 created the “Fi- 2007: ducie”, roughly equivalent to a Common Law trust. - Gifts up to € 151,950 between lineal relatives are tax free every six years (a significant increase on the previous limit of The principle is the following: 50,000 €); «The French trust (so called a settlor will transfer to a - Gifts between siblings of up to € 15,195 are tax free (previously trustee the full ownership of «Fiducie») as an attractive the limit was € 5,000); an estate, which the trustee - Gift to nephews and nieces of up to € 7,598 are now tax free.
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