This control can generally lead to a rectification of the prices or valuations used in documents subject to the registration formality (these are numerous and include transactions involving movable and immovable property (gifts, transfers, inheritance in particular, but also IFI).
When it comes to registration duty, the taxable value generally results from the statements made by the parties. Thus, in principle, agreements for which a price is stipulated are subject to proportional duties on the basis of an agreed price. When the deed does not contain an indication of the value of the property, the parties must make up for this by a detailed declaration of estimate (successions, gifts, exchanges and divisions).
The administration has the right to rectify the prices or valuations of goods (L17 of the LPF) declared to it by proving either a concealment of price or an insufficiency.
Concerning price concealment
To conceal the real price, the taxpayer will knowingly enter a lower price in the deed than that actually agreed. This concealment is very risky, as it can lead to a triple penalty (nullity of the deed in civil law, a tax fine equal to half the duties omitted) and in the worst case a criminal penalty (up to imprisonment). All this, not to mention the fact that the increase in value increases the taxable capital gain when the property is resold.
Reducing the sale price
Underpricing occurs when the price stipulated in the deed of sale is lower than the market value of the property. This value is not defined by law. Generally speaking, it is considered to correspond to the price that normal supply and demand would bring from the sale of the asset. But in this case, the sincerity of the deed is not called into question, nor is the alleged fraud.
The administration will therefore adjust the value of the property in relation to the price stipulated in the deed.
Rectification is carried out in accordance with the contradictory rectification procedure set out in article L55 of the LPF.The burden of proof lies with the tax authorities in rectifying the figures and terms of comparison that justify the proposed price or valuation adjustments.
The adversarial procedure may include, where appropriate, the intervention of the departmental conciliation commission, which may be called upon either at the taxpayer’s request or at the administration’s initiative.
In the event of deliberate failure to comply or fraudulent maneuvering on the part of the taxpayer, interest on late payment is added to the corresponding reduced duties.
Controlling inheritance tax
With regard to inheritance tax, article L19 of the LPF authorizes the tax authorities’ auditors to ask heirs for clarification or justification concerning their estate.
This may relate to the value of securities or claims not mentioned in the declaration, which are nevertheless presumed, until proven otherwise, to be part of the estate, pursuant to the first paragraph of article 752 of the CGI.
Still on the subject of inheritance tax, the administration may also demand proof of all debts deducted from the estate’s assets (LPF art L20).
If the justifications are deemed insufficient, the company may rectify the declarations in accordance with the “rectification contradictoire” procedure.
Article L21 B of the LPF provides for a special procedure for checking donations and inheritances on request. It enables signatories to the declaration of inheritance and donees to request a check on the deed they have signed. This request must be made within three months of registration of the deed, and must be signed by the beneficiaries of at least one third of the net assets declared and transferred at the time of the transfer. This reduces the administration’s recovery period by one year.