Abus De Droit

by | Dec 11, 2023 | Definition | 0 comments

Abus De Droit

Abuse of rights is a key issue that cuts across many aspects of French tax and civil law. This complex and often contentious concept warrants a closer look at its definition, implications and stakes for legislators, taxpayers and legal practitioners alike.

What is Abus de droit?

In legal terms, abuse of rights is defined as the intentional exercise of a legal right, with the sole aim of harming others or obtaining an advantage deemed illegitimate by the law. In the Finance Act, this notion takes on a particular dimension when it is used to thwart tax schemes devoid of any real substance.

History and legislative developments

Abuse of rights was for a long time confined to civil law, before gaining a prominent place in tax law, notably with the introduction of article L64 of the Livre des Procédures Fiscales. This legal framework enables the tax authorities to rule out as unenforceable acts constituting abuse of rights. Recent developments, notably the Anti-Fraud Act, have extended the scope of this concept.

The procedure for punishing abuse of tax law

The abuse de droit procedure takes place in several stages, during which the tax authorities have to prove that the taxpayer has used a mainly tax-driven set-up. Players such as tax litigation lawyers play a crucial role in defending their clients’ interests in the face of tax reassessments linked to abuse of rights.

Role of the Tax Abuse Committee

The Comité de l’abus de droit fiscal (tax abuse committee) was set up to give an independent opinion on the positions taken by the tax authorities on abuse of tax law. This body is consulted before any decision is taken, offering a form of guarantee to taxpayers.

Penalties for abuse of rights

Where abuse of rights is found, the taxpayer may be subject to severe penalties. In addition to rectifying tax evasion, interest on late payment and surcharges may be applied, reinforcing the deterrent nature of the legislation.

Practical examples of abuse of rights

There are many examples of abuse of rights, often linked to complex tax arrangements such as transfer pricing, tax optimization via low-tax countries, or abusive use of tax niches.

Difference with tax optimization

It is essential to distinguish between abuse of rights and legitimate tax optimization. The latter consists in applying existing tax provisions to minimize tax burdens, without contravening the spirit of the law. Tax experts, such as tax lawyers in Marseille, play an important role in helping you avoid any risk of abuse of rights.

Frequently asked questions

Here is a list of frequently asked questions about abuse of rights.

What is the difference between abuse of rights and tax fraud?

Abuse of rights is a practice which is basically legal, but which is diverted from its primary objective, while tax fraud is a deliberate act of concealment or misrepresentation to avoid paying tax.

How do tax authorities detect abuse of rights?

The administration has investigative powers and can carry out tax audits. If an abuse of rights is suspected, a specific procedure is set in motion, which may involve the Comité de l’abus de droit fiscal (tax abuse committee).

Is it possible to contest an accusation of abuse of rights?

Yes, the taxpayer has the right to challenge the administration’s decision, first before the Comité de l’abus de droit fiscal (tax abuse committee), then before the competent courts.

This article is intended to provide a general overview of the concept of abuse of rights, and does not go into all the complex details involved. It is advisable to consult a legal practitioner, such as a lawyer specializing in tax law, for personalized advice tailored to individual situations.

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