France CGT

France CGT

A brief introduction to the french & UK tax treatment of any gains

Gains made from the sale of French property owned directly by an individual(s) are liable to Capital Gains Tax in France. If the individual is resident or ordinarily resident in the UK, the disposal of the French property will also be subject to UK Capital Gains Tax.

Although a Double Taxation Treaty exists between France and the UK, the purpose of the agreement is not to allow the individual to “choose” in which country to pay the tax, nor is it designed to allow tax to be paid in only one country and not the other. Instead, the treaty simply allows that for a UK resident, any French tax paid will be credited against the UK tax arising from the same gain.

This  does not cover gains made from the sale of a property by a UK Ltd Company, or gains made from the sale of shares in a Ltd Company. Our recommendation it to contact one of our recommended accountants for specialist advice.

This information is based on legislation current for the UK tax year 2013/2014 and French Finance Bill 2014.

FRANCE – BASIC RULES FOR RATES OF TAX AND CALCULATION OF THE GAIN (2014). “REGIME DES PLUS VALUES PRIVEES”

The following describes the assessment of gains from the sale of private assets realised on or after 01/09/2014, (Régime des Plus-Values Privées). This does not apply to property which forms part of the assets of a professional business, such as “location en meublé professionnelle”. The description also does not apply to the disposal of a property by a UK ltd company or any other commercial company.

In general, apart from both jurisdictions applying tax on the gain and identifying the gain as the difference between the sale price and the purchase price plus enhancement costs.

1. TAX RATE SINCE 01 SEPTEMBER 2013

For an individual not resident in France, but able to prove they are resident in another EU state, a flat Capital Gains Tax rate of 34.5% is normally applied, , irrespective of the level of personal income generated in that year, and the number of owners.

For non EU residents  this does include the Channel Islands!) this basic rate increases to 48.83% and in certain cases to 65.5%.

The basic flat charge comprises 2 distinct elements: “Impôt sur le Revenu” and “Prelevements Sociaux”  or CSG. Their nature and the scope of their application differ in two substantial ways both for the purpose of calculating the taxable gain in France and the claim for double tax relief in the UK.

1.1 TAXABLE GAINS IN EXCESS OF 50.000€ : SUPPLEMENTARY TAX CHARGE

When the taxable gain exceeds €50,000 per owner a supplementary tax charge will apply on the excess.

Click here to see an illustrative table Supplementary Capital Gains Tax : Basic Rates and Transitional Reliefs

When added to the basic rates an unlucky taxpayer could therefore pay a tax rate as high as 71.5% on any sale made from 01/09/2014.

Even for an EU resident the tax charge could be over 35% of the taxable gain.

2. EXEMPTIONS & TAPER RELIEF

The availability of exemptions and reliefs will depend on several factors:

  •    How long the property has been owned.
  •    Whether the owners have at any time been fiscally resident in France and lived at the property  as their main residence during that period.
  •    Whether or not the property has been used to generate seasonal holiday lettings and if so, whether the activity is both registered at the Registre de Commerce et des Societes and qualifies as a “location en meublé professionnelle”.

2.1 EXEMPTIONS:

In principle, for the non French resident there are 5 main potential exemptions:

  •    The sale of a property which was the owner’s main residence at the time it was put up for sale and the disposal takes place within one year of that date.
  •    The taxpayer was French tax resident for at least 2 consecutive years at any time prior to the sale which in turn represents their first sale of a French property since 01/01/2006 and the sale takes place before the 31st of December of the 5th year following the termination of their French tax resident status. This exemption is limited to the first 150.000€ of post tapered taxable gain.
  •    The taxpayer was French tax resident for at least 2 consecutive years at any time prior to the sale which in turn represents their first sale of a French property since 01/01/2006 and the sale takes place at any time following the termination of their French tax resident status and the property has been reserved for the vendors personal use for the whole of the period running from the 1st of January of the year prior to the sale all the way through to the date of sale itself. This exemption is limited to the first 150.000€ of post tapered taxable gain.
  •    The taxpayer is in receipt of a state pension and is of modest means. For a single person, for 2014 this means having worldwide income of less than €10,225 and net assets below €1.3 million. For a married couple the income ceiling is €15,684.
  •    When the sale takes place at least 30 years after its initial date of acquisition – this being a result of accumulating taper relief.

Other exemptions are also available. In practice, however the difficulty lies in being able to justify to the fiscal representative, entitlement to the exemption.

2.2 TAPER RELIEF:

Unlike the UK, taper relief is still available in France to offset the impact of inflation in increasing the gain. Relative to the state of play before 01/09/2013 taper relief has been accelerated for the Impôt sur le Revenu and Supplementary tax elements of the overall tax charge, but has been back end loaded for Prelevements Sociaux.

Click here to see an illustrative table Summary of Taper Relief Rates

Special rules apply to the disposal of building land and the sale of shares in an SCI (Société Civile Immobilière) or other form of civil company.

After 22 full years of ownership the gain is thus exempt from Impot sur le Revenu, but still subject to CSG. It is not until 30 full years of ownership that 100% taper relief is acquired across the board and the whole sale value exempt from all taxes.

2.3 ALLOWABLE DEDUCTIONS

In addition to the basic purchase price paid for the property (or its construction) there are a number of limited allowable deductions which may be applied before arriving at the pre tapered gain.

2.3.1 Ancillary Acquisition Costs

As well as the basic purchase price, (“prix principal”), ancillary costs of purchase such as notaire’s fees and estate agent’s commissions can be added to the base purchase cost prior to arriving at the pre tapered gain.

When these fees cannot be justified, (e.g. absence or loss of notaire’s completion account), for French tax purposes, a default value of 7.5% of the prix principal will be assumed.

2.3.2 Acquisition Enhancement Costs

Similarly, subject to meeting strict rules on definition and justification, capital works for enlargement, improvement, conversion, construction and reconstruction may also be added – so reducing the pre tapered gain.

When the property has been owned more than 5 years, a default deduction amounting to 15% of the prix principal may be applied when actual capital works fall short of this or cannot be justified satisfactorily.

Often the works carried out far exceed this 15% sum, which then leads to the challenge of persuading the fiscal representative to accept the actual costs of improvement.

In practice there is variation between fiscal representatives as to what consititutes a qualifying improvement cost.

The definition relies heavily on case history, which at best is not clear and downright ambiguous in many instances.

Consequently, since the fiscal rep is initially liable for any tax re-assesment, their interpretation tends to err on the side of caution.

2.3.3 Costs of Sale

Meanwhile, the net relevant sale price may be reduced to account for a limited range of sales related costs:

  •    Fiscal representative charges
  •    Estate Agent commission
  •    Cost of diagnostics
  •    Discharge of a Mortgage deed

2.3.4 Furniture

The price of any furniture forming part of the sale, may be deducted from the sale price, subject to meeting a number of stringent criteria and involves the presentation of an inventory, with itemised values, (signed off by a registered auctioneer prior to signature of the compromis or promesse de vente), or justified by copy invoices. Again, this is a grey area as to what is or isnt allowable.

2.4 DECLARATION & PAYMENT : APPOINTMENT OF A FISCAL REPRESENTATIVE

Traditionally the notaire has been responsible for submitting the French tax declaration and making payment by deducting the tax from the sales proceeds.

However, in the case of a non resident seller, whenever a taxable sale arises, (therefore excluding those exempted by virtue of the 30 year ownership rule), a fiscal representative in France must be appointed to act on behalf of the seller and to be responsible for the payment of the tax, whenever the sale price exceeds €150,000.

Whilst in principle the fiscal representative may be any individual resident in France, in practice – since the representative themselves will be liable for any additional tax arising from any re-assessment, (which may be made up to 4 years after the sale) – the fiscal representation will almost always be via an appointed professional firm.

Part 2. THE UK – BRIEF SUMMARY OF RULES (TAX YEAR 2014/2015)

Jointly owned property, unless shown otherwise via the title deeds, is assumed to be owned equally.

The amount of tax due is arrived at by dividing the net gain, (after allowing for purchase and sale costs, improvement costs and taper relief), amongst the owners. Each individual may offset against their share of the net gain their annual personal Capital Gains Tax allowance of £11,000 – assuming that this allowance has not already been used up against other gains made in the same tax year.

The resulting apportioned gain is taxed – prior to any douible tax relief – at a rate of between 18% (basic rate tax) and 28% (higher rate tax), depending on:

  •    Whether or not your taxable income for the year is above or below the basic rate band threshold and
  •    Whether or not the taxable gain, when added to your taxable income straddles the threshold

The tax rate may be reduced to 10% if the property qualifies as a business asset, (e.g. it qualified for Furnished Holiday Lettings tax treatment).

The tax declaration and payment is made via self assessment due no later than 31st January in the year following the UK tax year of disposal.

Other than the application of Double Tax relief, there are no special rules applied to the fact that the gain is made abroad. The various permissible expenses and allowances applied when reducing the gross gain to a net taxable gain for disposals realised within the UK are equally valid for the French property.

Any loss made, (for example as a consequence of exchange rate movement), can be carried forward against any other UK taxable gains made in the same tax year or any future year in the individual’s lifetime.

1. DOUBLE TAX RELIEF FOR FRENCH TAX PAID.

Double Taxation Treaty provisions allow for some but not all of the French tax already paid or payable following the sale of the French property, to be offset against the UK tax as calculated above.

A tax rebate is not available if the French Tax paid is greater than the UK tax calculated. In such a case, there would simply be no tax to pay in the UK.

1.1. HMRC INTERPRETATION OF PRELEVEMENTS SOCIAUX & CURRENT TREATMENT FOR TAX RELIEF.

Prélèvements sociaux are currently excluded from the charges for which credit is allowed against UK capital gains tax.

They are specifically excluded as an allowable tax in the current double tax treaty, but HMRC have also clarified that they also don’t qualify for unilateral tax relief, (under TIOPA : Taxation [International and Other Provisions] Act 2010).

Despite the French Administration determing that Prélèvements Sociaux are taxes rather than social charges, when applied to unearned income and gains, HMRC currently take the view that they are social charges, not a tax, and therefore not available for offset against UK capital gain tax.

Resolving the Anomaly

Fortunately, the first steps in resolving this via an approach to the ECJ (European Court of Justice) were made in late 2013. The preliminary judgement regarding the nature of Prélèvements Sociaux  suggests that the ECJ has identified prelevements Sociaux as being subject to European Social Security Legislation.

If Prélèvements Sociaux truly are social charges, their scope for application would be down to the taxpayer’s National Insurance status – whether they are subject to UK or French National Insurance legislation.

In this case, if the taxpayer is not within the scope of French NI legislation, then Prélèvements Sociaux will not be chargeable on the gain – with the potential existing for those taxpayers who have already suffered the charge to make a claim for recovery. For those who have already sold and submitted a UK tax return disclosing the gain, the outcome of the ECJ judgement will result in an amended return needing to be made in the UK and potentially a claim for refund of CSG to the French tax authorities.

1.2. HMRC INTERPRETATION OF AN SCI FOR UK CGT PURPOSES.

In our experience to date there is currently a great deal of confusion over the correct UK tax treatment of the gain whenever an SCI is involved. In any event, the involvement of an SCI complicates matters in the UK considerably and requires balance sheets to be maintained and approved by the shareholders (along with other processes) if any interpretation of the sales proceeds adopted by the UK resident shareholder in their UK self assessment return is to stand up to enquiry by HMRC.

The position is reasonably straightforward whenever the French transaction concerns the sale of the SCI shares rather than the sale of the property by the SCI – any French tax on the gain is available as a credit against corresponding UK tax assessed on the gain attached to the sale of the shares.

If the SCI sells the property we encounter a double tax problem arising from the fact that HMRC treats the SCI as taxable in its own right – whereas in France the SCI is semi transparent for tax purposes, with the gain being charged to the shareholders and calculated according to their legal status and proportionate interests in the SCI.

According to HMRC :

If the SCI is deemed UK tax resident, then the gain on the sale of the property is assessable to UK corporation tax in the name of the SCI. In this instance a tax credit can be claimed against the UK tax for the corresponding French tax paid by the shareholders by virtue of the UK and French tax arising from the same gain.

When the SCI is not deemed UK resident, however, there is no scope for UK Corporation tax to be charged on the sale itself.

However this is not the whole picture :

Because of HMRC treating the SCI as an opaque structure, with its own legal entity separate to that of the shareholders, there is then a secondary UK assessment to tax on the subsequent allocation of the sales proceeds to any shareholders who are UK tax resident at the time. This is true whether or not the SCI is UK resident.

 

Again, this is an area where specialist advice is required from an ‘expert comptable’ or chartered accountant.

 

This information is current and up to date as at the 30/12/2014 and is aimed to provide an insight into how CGT is assessed for properties sold in France. We are not accountants and therefore specialist advice should be sought from an accountant if you have any concerns whatsoever that the tax being charged to you isnt correct.

 

We cannot be held responsible for any information listed above that may subsequently be out of date or incorrect.

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