It is often important to know in advance the position of the tax authorities on a factual situation presented to them, but also, more specifically, on the interpretation of a tax text or measure on which they have no position.

In this sense, a tax rescript is a response from the tax authorities to a question from the taxpayer concerning the interpretation of a tax provision in force, or a factual situation with regard to tax law.

The rescript is open to all professionals and individuals, including associations and even local authorities.

This procedure applies to all taxes governed by the General Tax Code (CGI).

On the interpretation of tax texts, the Administration may be called upon to take a position at the request of a taxpayer acting in good faith. It publishes its rescrits anonymously on BOFIP (available online).

These formal positions are enforceable against the tax authorities as statements of position (articles L 80 A and L80 B of the French General Tax Code).

Specific” tax rulings may be requested for specific factual situations, to ensure that the taxpayer is eligible for the tax regimes concerned by the ruling. Provided that the facts presented in the rescript request are consistent with the company’s practice, the tax authorities cannot call into question the benefit of the scheme during a tax audit. The rescript therefore creates legal certainty for its beneficiary.

Rescript which tax framework to choose?

The following is a list of the various tax rescripts and the framework in which they operate. The assistance of a tax lawyer in the preparation and review of the documents submitted ensures that the application complies with the requirements of the text, and thus avoids disappointment and complexity in the processing of such applications.

Rescrit new companies and companies located in certain zones
LPF art. L 80 B, 2° b
To obtain a formal position on the assessment of the company’s de facto situation with regard to the income tax exemption schemes provided for companies starting up or taking over a business :

– in a regional aid zone (
CGI art. 44 sexies
)

in dynamic urban areas (
CGI art. 44 sexdecies
)

– in priority development zones (
CGI art. 44 septdecies
)

– in a rural revitalization zone (
CGI art. 44 quindecies
)

– in a zone franche urbaine-territoire entrepreneur (
CGI art. 44 octies A
).

If no response is received within 3 months, tacit approval is given.

Rescrit research tax credit and tax credit for collaborative research
LPF art. L 80 B, 3° and 3° bis

 

Rescrit roulant for the CIR
LPF art. L 80 B, 3RD

To ensure that the project is eligible for the tax credit before any research expenditure is incurred or research tax credit for collaborative research. Applications can be made either to the tax authorities or directly to the departments of the Ministry of Research.
In the case of SMEs, the request may also be made to the authorities to validate the amount of expenses incurred.
The request must be submitted at least 6 months before the deadline for filing the special 2065-A-SD declaration (or the first declaration in the case of multi-year projects).
If no response is received within 3 months, the tax authorities will be bound by the implicit favorable response.

In the event of a change to a multi-year research project, companies that have already obtained a formal position from the tax authorities confirming the eligibility of their multi-year project for the research tax credit may request a review of the initial decision.
This request for revision must be filed at least 6 months before the deadline for filing special declaration no. 2069-A-SD. The administration must decide on the request within 3 months.

Rescrit jeune entreprise innovante and jeune entreprise universitaire
LPF art. L 80 B, 4TH
To check with the tax authorities that companies meet the conditions required to benefit from the various tax advantages (exemption from corporate income tax and direct local taxes) and social benefits attached to the status of “young innovative company” (JEI) or “young university company” (JEU).
If no response is received within 3 months, tacit approval is given.
Permanent Establishment Rescript
LPF art. L 80 B, 6TH
The companies concerned may wish to be assured that they do not have a permanent establishment or fixed base in France within the meaning of the applicable bilateral tax treaty.
If no response is received within 3 months, this constitutes tacit approval, validating the absence of a permanent establishment in France.
Advance Pricing Agreements
LPF art. L 80 B, 7TH
French and foreign companies carrying out cross-border transactions with related companies may request the tax authorities to reach an advance agreement on the method for determining their future transfer prices.
Rescrit categorical definition of certain professional income
LPF art. L 80 B, 8°.
1) Self-employed individuals operating a sole proprietorship, and partners in companies governed by article 8 of the CGI who are subject to income tax on their share of the company’s profits. can ask the tax authorities to rule on the category of income to which their professional activity or share of partnership profits belongs: industrial and commercial profits (

CGI art. 34


) or non-trading profits (


CGI art. 92


).

2) Non-trading companies carrying on a professional activity may submit a request concerning the nature of the tax to which their profits are subject: corporation tax or income tax.
If no response is received within 3 months, tacit approval is deemed to have been given: the tax authorities are deemed to have approved the tax system used in the declarations.
Rescrit restructuration
LPF art. L80 B, 9TH
To avoid carrying out a merger or similar transaction (CGI art. 210-0 A) which would be considered to have been carried out for the purpose of tax evasion or avoidance, companies can ask the tax authorities whether the planned transaction meets valid economic objectives and cannot therefore be excluded from the special regime.
The authorities are deemed to have given tacit approval if they fail to respond within 6 months.

Rescript
anti
abuse clause






LPF art.


L 80 B, 9° bis

Companies subject to corporation tax wishing to secure the tax treatment of a transaction they are considering can ask the tax authorities, on the basis of a precise and complete written presentation of the transaction, for confirmation that the anti-abuse clause (CGI art. 205 A), which allows the tax authorities to disregard the tax consequences of acts entered into primarily for tax purposes, does not apply to them.
In the absence of a response within 6 months, the administration will be deemed to have given tacit approval.
Rescrit contrôle
LPF art. L 80 B, 10°.
Taxpayers who are the subject of an audit or accounting examination may ask the auditor for a formal position, enforceable against the administration, on points of law or fact examined during the audit and for which no adjustment is proposed.
The administration responds within 3 months of receipt of the application or, in the case of an incomplete application, of receipt of the additional information requested.
The points covered by the guarantee appear on the rectification proposal or on the notice of absence of rectification.
Rescrit mécénat
LPF art. L 80 C
Before issuing tax receipts, associations, foundations and endowment funds can check with the tax authorities that they meet the criteria set out in Articles 200 and 238 bis of the French General Tax Code (CGI), so that donations made to them are eligible for tax relief.

If the tax authorities fail to respond within 6 months, the organization can rely on a tacit positive response and cannot be penalized by the fine for irregular issue of tax receipts (


CGI art. 1740 A


).
Rescrit valeur
LPF art. L 18
When a taxpayer is considering donating all or part of his sole proprietorship or company shares, he can ask the tax authorities to commit to the market value of the business assets transferred by donation.
The administration must respond within 6 months of receipt of the request. If the donation is made within 3 months of the administration’s response, the valuation cannot be called into question.
Rescrit abus de droit
LPF art. L 64 B
Prior to the conclusion of a deed, agreement or transaction, the tax authorities may be consulted for a ruling on the true scope of the transaction, i.e. whether or not the elements submitted for analysis represent a fictitious situation or one that differs from the true legal situation.
If the tax authorities fail to respond within the 6-month time limit, they may not bring an action for abuse of rights against the transaction described, but this does not prevent them from making adjustments on another basis.

 

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