Roche & Cie

Deadline to claim reimbursement of the levy on capital gains

Non-residents: deadline to claim reimbursement of the levy on capital gains

The State Council has just ruled that the deadline to claim reimbursement of the levy on real estate gains of non-residents (Art. 244 bis of the CGI) was two years and not one year as alleged by the Minister of Finance.

Background

M.A , tax resident of Japan, sold during 2007, the undivided stake in a building located in Paris.

On this occasion Mr. A has paid the levy on capital gains at the rate of a 1/3 while under Article 244 bis of the CGI.

By a complaint lodged on 28 December 2009, he asked that the levy is calculated by applying the rate of 16% then reserved for French residents and residents of another EU Member State or of a State Party the EEA agreement has concluded with France a tax treaty containing an administrative assistance clause and the difference from the amount actually paid to him be returned.

In a judgment of 25 March 2011, the Administrative Court of Montreuil has granted his request.

In a judgment of 16 September 2014, the CAA of Versailles rejected the appeal of the Finance Minister’s against that judgment.

The Finance Minister has appealed against the judgment of the CAA.

The Minister argued that the contentious claim of the taxpayer was late in relation to the period referred to b) the second part of Article R * 196-1 of the LPF:

“However, in the following cases, claims must be submitted no later than December 31 of the year following, as applicable:

a) receipt by the taxpayer of a new tax notice repairing shipping errors contained in it addressed above;

b) In which the withholding taxes and levies were made in the case of disputes relating to the application of these deductions;

c) In which the taxpayer had certain knowledge of direct tax contributions wrongly established or duplicative. “

The administrative court found in favor of the taxpayer.

It held that the levy ‘paid upon registration of the deed of sale of property, property rights or shares, or in the month following the sale by a tax representative authorized by the Administration on behalf of the taxpayer is not recovered by assessment or collection delivery notice “

Accordingly it held that claims relating to this tax were to be submitted to the administration within the time prescribed by the provisions of b) of the first part of Article R * 196-1 of the LPF (…):

“To be admissible, claims relating to taxes other than direct local taxes and ancillary charges such taxes must be submitted to the administration not later than 31 December of the second year following, as applicable:

a) the cover-up of the role or the notification of a cover-up notice;

b) the payment of the contested tax where that tax has not led to the establishment of a role or notification of a cover-up notice;

c) the completion of the event giving rise to the claim. “

“(…) Without there impedes the fact that the tax in question is described as” sampling “and its payment is not made by the taxpayer himself”

Judgment of the State Council of 15 April 2016 No. 385 737

For memory

Article 60 of the Amending Finance Act for 2014 returned to the taxation of non-residents on the real estate gain.

According to the case law developments and in particular the judgment of the State Council of 20 October 2014 was in line with a harmonization of the tax, the tax rate was reduced from 33.33% to 19% for all non-residents as regards the real estate gains.

Therefore, since 1 January 2015, a single tax rate of 19% is applied for residents to non-residents (whether of the European Economic Area or a third country).

Source : Fiscal On Line