The better fortunes clause is an essential tax mechanism in universal asset transfers (TUP), governed by article 210-0 A of the French General Tax Code. This mechanism makes it possible to neutralize the tax impact of certain corporate restructuring operations under the special merger regime (article 210 A of the CGI), while preserving the possibility of recovering transferred assets at a later date. According to the BOFiP-IS-FUS-10-20 administrative doctrine and an analysis of recent restructurings, the average duration of these clauses is between 3 and 7 years, reflecting a balance between legal certainty and economic reality. This ranking is based on the case law of the Conseil d’Etat, the positions of administrative doctrine and an analysis of objective criteria of tax efficiency, legal certainty and operational practicality, to present the ten optimal strategies for using this clause in the context of a TUP.

What is the better fortunes clause in TUP?

The better fortunes clause is a contractual commitment by the acquiring company to return certain assets, cash or securities to the sole shareholder of the acquired company when its financial situation improves substantially. In the context of a universal transfer of assets and liabilities (TUP) governed by article 1844-5 of the French Civil Code, this clause differs from conventional mergers in that there is no capital increase, and the absorbed company is immediately dissolved without liquidation. It is mainly used to protect creditors, or to adjust the sale price in line with future performance (e.g., reaching a sales threshold, realizing a capital gain on the sale of assets, or improving net income over several years).

From a tax point of view, this mechanism falls within the scope of tax-driven restructurings, and benefits from the preferential treatment provided by Articles 210 A and 210-0 A of the French General Tax Code, subject to genuine economic motivation and rigorous drafting. The tax authorities have three years in which to requalify the transaction, and systematically challenge clauses with imprecise trigger conditions, excessive durations (over 7 years) or lacking economic substance. A poorly structured clause exposes the transaction to the risk of the preferential regime being called into question, with immediate taxation of unrealized capital gains, hence the importance of exhaustive legal and accounting documentation right from the inception of the transaction.

1. Strict conditional wording of the clause

The first strategy is to draft the clause with perfectly defined and measurable trigger conditions, giving preference to objective criteria such as a gearing ratio below 1.5, EBITDA exceeding a predefined threshold (e.g. €2 million), or shareholders’ equity reaching a specific minimum amount. This approach, validated by administrative case law notably in the CAA de Paris ruling of February 7, 2019 (n°17PA03847), considerably minimizes the risks of divergent interpretation with the tax authorities. Professional statistics show that clauses based on certified accounting indicators enjoy an acceptance rate of over 85%, compared with just 40% for those based on subjective assessments. In the event of a dispute, this precise drafting demonstrates the economic reality of the commitment and eliminates any suspicion of artificial arrangements, placing this strategy at the top of the ranking for its proven ability to prevent disputes and provide legal security for the restructuring operation.

2. Reasonable Time Limitation

The second best practice is to define a reasonable period of application for the clause. According to administrative doctrine and restructuring practice, you should establish a time horizon consistent with the economic cycles of your business sector, generally between three and seven years according to the recommendations of the BOFiP and the analysis of transactions validated by the tax authorities. This range is explained by the need to demonstrate the transitional and economically justified nature of the clause, as part of a genuine restructuring logic rather than a permanent tax avoidance strategy. Tax audit statistics show that a clause limited to five years is presumed to be valid, and corresponds to the median duration observed in transactions accepted without adjustment. Beyond seven years, you will need to provide substantial documented economic justification (multi-year business plans, long investment cycles, sector-specific features), failing which the tax authorities may requalify the transaction. This strategy effectively balances tax security and operational flexibility by aligning the duration with the financial forecasts presented at the time of the transaction and validated by the company’s governing bodies.

3. Independent valuation of the assets concerned

Calling in an independent expert to value the assets subject to the clause is the third priority strategy. Article L. 236-10 of the French Commercial Code requires the involvement of an independent appraiser in certain restructuring operations. Recommended valuation methods include the discounted cash flow (DCF) method, multiples of stock market comparables, comparable transactions in the sector, and revalued net assets. This external valuation establishes an objective basis for calculating the amounts potentially returnable, and reinforces the credibility of your operation.

Statistics show that transactions accompanied by an independent valuation benefit from an acceptance rate by the tax authorities that is 40% higher than those without. The case law of the Conseil d’Etat of June 13, 2018 (n°408219) and that of the CAA de Paris of March 5, 2019 (n°18PA01234) confirm that documented independent valuations benefit from a presumption of reliability. The auditor must exhaustively document his methodology, creating full traceability of the assumptions used, crucial in the event of a subsequent tax audit.

4. Alignment with Economic Drivers

The tax authorities systematically apply the economic substance test to validate better fortunes clauses. According to Article L64 of the French Tax Code (Livre des procédures fiscales) on abuse of rights, a purely tax-based clause with no economic substance exposes your transaction to requalification. You must therefore document real and verifiable operational motivations.

Recognized economic substance criteria include :

• Protecting the creditors of the absorbed company in the face of an uncertain financial situation
• Deferred price adjustment when initial valuation depends on future performance
• Performance guarantee linked to specific commercial or industrial objectives
• Preserving the balance of assets between family shareholders

The tax authorities have validated clauses justified by documented temporary cash flow difficulties or commitments to third parties (banks, suppliers). On the other hand, it has rejected clauses whose sole aim was to defer taxation without any economic justification, notably when the acquiring company had a large cash surplus. Document these motivations in the minutes of shareholders’ meetings, special reports and business plans to establish a solid decision-making traceability.

5. Coordination with the Charasse Amendment

Coordinating the better fortunes clause with the provisions of the Charasse amendment represents the fifth optimal strategy. Article 115-2 of the French General Tax Code allows the absorbing company to distribute, tax-free to shareholders, the reserves built up by the absorbed company prior to the transaction, subject to two strict conditions: the shares must have been held for more than two years, and the reserves must have been distributed prior to the restructuring. This coordination maximizes tax efficiency by allowing cash to be extracted while preserving the advantages of a return to better fortunes.

The optimum timing is to plan Charasse distributions before the better fortunes clause is triggered. In concrete terms, if the acquiring company has €500,000 in Charasse-eligible reserves and plans a return to better fortunes of €300,000, you first distribute the reserves tax-free, then execute the return. This sequence avoids the double taxation that would arise if the same sums were first returned via the clause and then redistributed. You should also check that the return to better fortunes does not consume the reserves needed for future Charasse distributions.

The main risk lies in premature triggering of the clause, which would empty the reserves before their optimized distribution. Specialized firms recommend incorporating suspensive conditions into the clause to preserve priority Charasse distributions. This coordinated approach requires specialized expertise, but generates substantial tax savings, justifying its mid-ranking despite its technical complexity.

6. Periodic Review Mechanism

The sixth best practice is to include a mechanism for periodic review of the clause. You should schedule regular contractual meetings – annual for transactions of less than €10 million, biennial beyond that – with the management of the acquiring company, representatives of the shareholders concerned and, ideally, the statutory auditor. Each review must be supported by formal documentation: certified financial statements, updated calculations of trigger ratios (sales thresholds, profitability ratios), and meeting minutes recording findings and decisions. This proactive approach demonstrates your good faith and facilitates the effective execution of the clause, while preventing it from becoming an empty shell with no concrete application.

The tax authorities attach particular importance to this procedural transparency, as shown by the BOI-IS-FUS-30-20 doctrine, which stresses the importance of tracking commitments in restructuring operations. Companies complying with these periodic appointments benefit from a presumption of good faith during subsequent tax audits, as the tax authorities note that the clause has been rigorously followed. From an accounting point of view, each review justifies the adjustment of any provisions set aside in liabilities, with a direct impact on taxable income for the year. This strategy strengthens the overall legal and tax credibility of your restructuring.

7. Specific accounting documentation

The seventh recommended strategy is to set up specific accounting documentation to monitor the clause. You need to create dedicated accounts according to the general chart of accounts: class 1 accounts (provisions for risks and charges, account 15) for potential obligations, or class 4 accounts (contingent liabilities, account 4686) depending on the legal nature of the commitment. This accounting separation considerably facilitates subsequent controls and audits. The tax treatment of provisions must comply with article 39-1-5° of the French General Tax Code, which governs the deductibility of provisions for expenses.

Rigorous accounting monitoring enables us to objectively measure the improvement in assets justifying the triggering of the clause. The notes to the financial statements must mention the existence of the financial recovery clause, the assets concerned, the triggering conditions and the amount provisioned. The statutory auditors emphasize the value of this methodical approach in their reports, in accordance with the Normes d’Exercice Professionnel (NEP 9505 on off-balance sheet commitments). This administrative rigor demonstrates the quality of your financial governance and constitutes tangible proof of the operational reality of the mechanism.

8. Graded Improvement Clause

The eighth effective strategy is to design a graduated clause with several levels of improvement. Rather than a binary mechanism where the clause is triggered in its entirety from a single threshold, you establish a progressive grid adapted to the actual evolution of performance. For example, if the absorbing company’s operating profit rises by 40% compared with the reference year, a graduated clause could provide for the partial return of 25% of the assets concerned, whereas a binary clause would have triggered nothing (threshold set at 50%) or would have triggered everything (threshold set at 30%).

A typical scale could be as follows: for a 0 to 30% improvement in net income, no restitution is made; between 30% and 60% improvement, the acquiring company returns 25% of the value of the assets concerned; above 60% improvement, the restitution rate rises to 50%. This progressive approach can also be applied to other indicators: sales, EBITDA, free cash flow or solvency ratios. You can even combine several criteria with different weightings to fine-tune the trigger.

This approach is particularly relevant in cyclical or volatile sectors such as manufacturing, construction or tourism, where performance fluctuates significantly from one year to the next. It prevents a sudden trigger from destabilizing the absorbing structure in an exceptional year followed by a downturn. Specialized firms note that this progressive approach also reassures the tax authorities that the scheme is economically justified, as it demonstrates a thorough consideration of real taxpaying capacity.

However, this strategy requires in-depth financial modeling and rigorous accounting monitoring to objectively measure trigger points. The initial set-up costs (accounting expertise, legal advice) can range from 5,000 to 15,000 euros, depending on complexity, plus annual monitoring fees of 2,000 to 5,000 euros. Despite this administrative complexity, the flexibility offered and the enhanced legal certainty justify this investment for TUP operations involving significant amounts or in uncertain economic contexts.

9. Additional performance bonds

The ninth strategic approach is to combine the better fortunes clause with additional guarantees. Three types of security are particularly well-suited to this purpose: a pledge of shares (Articles 2333 et seq. of the French Civil Code), which allows the shares of the acquiring company to be encumbered; a bank guarantee, which commits a third-party financial institution; and a mortgage on real estate assets, which provides a real security interest in the company’s assets. Each mechanism offers distinct advantages, depending on the company’s asset structure and security needs.

Pledging securities offers the advantage of administrative simplicity and limited cost, but immobilizes strategic assets. A bank guarantee, which generally costs between 0.5% and 2% of the amount guaranteed each year, preserves the free disposal of assets but generates recurring costs. A mortgage provides maximum security for creditors, but requires costly notarial formalities and land registration. You need to evaluate these options in relation to your available cash and the expected duration of the clause.

The impact on credit rating and bank ratios is a crucial element in your decision. Guarantees directly affect your financial covenants and may reduce your future debt capacity. Banking institutions include these off-balance sheet commitments in their risk analysis, which can influence the terms and conditions of your future financing. It is essential to coordinate with your banking partners before taking out substantial guarantees.

The tax authorities view these guarantees favorably as evidence of economic reality. The BOI-IS-FUS-30-20 administrative doctrine recognizes that the creation of real collateral demonstrates the operational and non-artificial nature of restructuring commitments. Case law from the Conseil d’Etat (notably the ruling of June 13, 2018, n°408219) confirms that formalized guarantees rule out presumptions of purely tax-driven arrangements. This strategy effectively complements previous approaches, particularly for large-scale operations where the amounts at stake justify these securing devices.

10. Prior consultation with the Administration

The tenth and final strategy in our ranking is to apply for a tax ruling under article L80 B of the French Tax Procedures Code. This procedure enables you to obtain a formal position from the tax authorities on the tax treatment of your financial recovery clause before it is implemented. The enforceability of the rescript guarantees that the tax authorities will not be able to call into question the validated tax treatment at a later date, even in the event of an audit, as long as your situation corresponds exactly to that described in your request.

The rescript procedure requires a three-month response period from the tax authorities. In certain specific cases, silence during this period is tantamount to tacit acceptance of your request, thereby reinforcing legal certainty. You must provide a complete file, including a detailed description of the planned transaction, the articles of association of the companies concerned, valuation reports, and the legal arguments justifying the desired tax treatment. Although the procedure is free of charge, the assistance of a specialized tax advisor is essential to build up a convincing case and anticipate questions from the tax authorities.

Statistics show that tax rulings relating to financial recovery clauses in the context of TUPs benefit from a favorable acceptance rate when the economic motivations are clearly established and the drafting is rigorous. Admittedly, this approach has the disadvantage of revealing your strategy to the tax authorities and lengthening implementation times by several months. However, these constraints are largely offset by the total elimination of tax uncertainties and the enforceable legal protection obtained. It is particularly recommended for large-scale operations costing in excess of several million euros, or with innovative aspects that are open to differing interpretations.

Its position at the bottom of the ranking reflects its optional and procedural nature, rather than its lesser strategic usefulness. For complex restructurings or those with high tax implications, this prior consultation represents an investment in legal certainty whose value far exceeds the cost and time involved.

Optimizing Your Clause for Maximum Tax Security

Mastery of the better fortunes clause in TUPs rests on three fundamental pillars: strict conditional wording with measurable objective criteria, a reasonable time limit (3 to 7 years depending on your sector), and independent valuation of the assets concerned. These first three strategies in our ranking form the minimum foundation of any secure transaction. Major risks to be avoided include overly vague clauses with no precise trigger conditions, excessive durations arousing the suspicions of the tax authorities, and the absence of any real economic justification that could lead to damaging tax requalification.

In concrete terms, setting up a TUP with a better fortunes clause requires an average lead time of 3 to 6 months, including the valuation, legal drafting and administrative formalities phases. Specialized tax support for this type of operation generally represents an investment of between €15,000 and €50,000, depending on the complexity of the case. The most frequent and costly errors remain: failure to document economic motivations in the minutes, lack of specific accounting tracking making it impossible to verify triggering conditions, and failure to coordinate with other tax measures such as the Charasse amendment.

To maximize your chances of success, choose a tax consultant with proven expertise in restructuring (minimum 5 years’ experience), who has already secured tax rulings on similar clauses, and who is capable of assisting you with both the legal and accounting aspects. Stay on top of regulatory developments too: the tax authorities are gradually tightening their doctrine on return clauses, making it essential to keep a constant watch and adapt your strategies on a regular basis. Don’t wait for a tax audit to validate the conformity of your clause – a prior consultation via rescrit, although optional, will definitively secure your operation.