The Comité de l’abus de droit fiscal is an essential consultative body in the French system for combating abusive tax optimization. You can refer your case to it when the tax authorities are considering applying the abus de droit procedure set out in article L64 of the Livre des Procédures Fiscales. This body guarantees an impartial examination of your situation before any final tax adjustment decision is taken.

What is the Comité de l’Abus de Droit Fiscal?

The Comité de l’abus de droit fiscal (tax abuse committee) is a consultative body reporting to the Budget Minister. It intervenes when the tax authorities suspect a taxpayer of having set up an arrangement with the sole aim of evading or mitigating tax. It is made up of three members of the Conseil d’Etat, including a chairman, and a magistrate from the Cour de Cassation.

This body examines cases where the tax authorities invoke article L64 of the LPF to characterize an abuse of rights. In this way, you benefit from an informed opinion before the administration confirms or abandons its tax reassessment.

The Committee’s missions

The committee has three main missions in the fight against abuse of tax law. It issues an opinion on the existence of an abuse of rights, evaluates the fictitious nature of the acts or their exclusively tax-related motivation, and assesses the scope of the legal provisions invoked. To carry out these tasks, the committee examines all the accounting and legal documents provided by the taxpayer and the tax authorities, including accounting records and proof of the disputed transactions.

Examination of the Fictivity of Acts

The committee analyzes whether the legal acts you have performed correspond to an economic reality. It checks that your transactions are not purely artificial or devoid of substance. This analysis covers contracts, legal structures and financial flows. As part of thelegal abuse procedure, the committee examines the consistency between the legal form chosen and the reality of the underlying economic transactions.

Assessment of the Exclusive Fiscal Purpose

The court will examine whether your scheme has a purely tax-related purpose, or whether it has legitimate economic motivations. The burden of proof lies with you: you must establish that your management choices are based on considerations other than mere tax savings. In particular, the committee accepts motivations linked to corporate reorganization, rationalization of structures, international expansion or operational optimization.

The committee assesses all the circumstances surrounding your decisions, applying a number of criteria: the economic coherence of the package, the precedence of the motivations in relation to the tax advantages, the proportionality between the costs incurred and the expected non-tax benefits, and the real substance of the operations. Documentation contemporaneous with the transactions (preliminary studies, deliberations, correspondence) significantly strengthens your position.

Committee referral procedure

Referral to the committee is an essential taxpayer right. When you receive a tax adjustment proposal based on abuse of rights, you can ask the tax authorities to refer the matter to the committee. This request must be made within a strict deadline of 30 days from receipt of the proposed reassessment. The tax authorities are then obliged to refer the matter to the committee. If you let this deadline expire, you will lose this procedural guarantee and will no longer be able to benefit from the committee’s opinion.

Your referral request must be substantiated from the outset. You must submit a detailed memorandum setting out your legal and factual arguments challenging the classification as an abuse of rights. This brief must demonstrate either the economic reality of your actions, or the existence of motivations that are not exclusively tax-related. The tax authorities also submit their observations in response to your brief.

Referral to the committee automatically suspends the tax reassessment procedure until the opinion is issued. During this period, the tax authorities can neither continue the procedure nor issue an assessment. The committee may summon you to an adversarial hearing, at which you may be assisted by a tax attorney. This hearing gives you the opportunity to present your arguments orally and answer questions from committee members.

Time limits and procedural guarantees

The committee has nine months from the date of referral to give its opinion. This period may be extended by three months in cases of particular complexity. During this period, the administration may not issue an assessment. This gives you sufficient time to prepare your defense. If the tax authorities unlawfully refuse to refer a matter to the committee, even though you have made a request within the time limit, this procedural irregularity will invalidate the tax reassessment.

Time limits and procedural guarantees

The committee has nine months from the date of referral to give its opinion. This period may be extended by three months if the case is particularly complex. During this period, the administration may not issue an assessment of the disputed taxes. This gives you sufficient time to prepare your defense and gather all the evidence you need to make your case.

The Scope of the Committee’s Opinion

The Committee’s opinion is asymmetrically binding on the tax authorities. In concrete terms, if the committee concludes that there is no abuse of rights, the administration is obliged to abandon the reassessment based on this ground. It cannot override this favorable opinion. If, on the other hand, the committee concludes that an abuse of rights has occurred, you retain full rights to contest the reassessment before the administrative judge, who will conduct his own review.

Available statistics show that the committee regularly issues favorable opinions to taxpayers in a significant proportion of the cases it examines, which testifies to its effective protective role. When the committee’s opinion is unfavorable, you can still appeal to the administrative court to contest the administration’s decision, as the judge is not bound by the committee’s assessment.

Consequences in terms of penalties

The committee’s opinion has a direct impact on the penalties applicable. If the committee concludes that there has been abuse of rights, the tax authorities may apply an 80% surcharge on the duties evaded. If the committee’s opinion is in your favor, you will not be subject to this particularly heavy penalty. The committee may also recommend a reduction in penalties, depending on the circumstances.

Mini-Abus de Droit and Committee

The mini-abuse de droit procedure provided for in Article L64 A of the LPF does not require referral to the committee, which is a major difference from the classic abuse de droit procedure. This simplified procedure applies to schemes designed to benefit unduly from a specific tax advantage provided for by law: tax credits (research, innovation), sector-based tax reductions (Pinel, Malraux), targeted exemptions or doubletaxation mechanisms that have been diverted from their intended purpose. The tax authorities can make adjustments directly, without going through the committee, which considerably reduces your procedural guarantees and speeds up the procedure. Penalties also differ: 40% of the duties evaded for mini-abuse versus 80% for classic abuse of rights, after consulting the committee. According to statistics from the Direction générale des finances publiques, article L64 A accounts for around 30% of abuse of rights procedures, mainly in the real estate and R&D sectors. Quickly identifying the legal basis for the envisaged reassessment (L64 or L64 A) is therefore crucial to adapting your defense strategy and assessing the appropriateness of a contentious challenge.

Defense strategy before the Committee

Your defense before the committee requires rigorous preparation and solid legal argumentation. You must demonstrate that your actions correspond to an economic reality and pursue legitimate objectives. The most convincing evidence includes economic studies prior to your operations, independent expert opinions, and previous correspondence establishing the coherence of your approach. The presentation of detailed accounting documents, authentic contracts and a precise chronology of your decisions considerably strengthens your credibility. Statistics show that files containing substantial economic documentation obtain a favorable opinion in almost 75% of cases, compared with only 45% for files based solely on legal arguments.

The temporal coherence of your actions is a decisive criterion for assessment. The committee examines whether your decisions are part of a coherent overall logic, or whether they appear to be opportunistic adjustments made after the fact. A solid file generally requires three to six months of meticulous preparation. You need to avoid certain common mistakes: presenting contradictory justifications, providing incomplete or late documentation, or downplaying the tax dimension of your operations to the point of appearing lacking in credibility. Controlled transparency about your motivations, including the tax advantage without making it the exclusive objective, proves more effective than a total denial of the tax dimension.

Articulation with Tax Litigation

The procedure before the committee is part of a wider litigation process. Even after the committee has issued an opinion, you have two months from notification of the administration’s decision to contest the adjustment before the administrative court. The judge is not legally bound by the committee’s opinion, and makes his or her own analysis of the facts and the law, but the opinion enjoys significant moral authority: the administrative courts frequently refer to it in their reasoning, and reassessments upheld despite an opinion favorable to the taxpayer are overturned in around 40% of cases. This dual protection – examination by the committee followed by judicial review – substantially strengthens your procedural guarantees, and justifies a coordinated litigation strategy from the moment you receive the rectification proposal.