Without any prior consultation, the Finance Act for 2019 has broken the deadlock of the abuse of tax law by allowing a requalification of an operation whose “main objective” – and no longer exclusive – to evade or mitigate tax burdens. investissement défiscalisant
The new article L 64 A of the Book of Fiscal Procedures issued by the Finance Act for 2019 is applicable to acts passed as from 1 January 2020. “The legislator provided for this postponement of the entry into force to allow the administration to specify the terms of application “, said the Ministry of Finance,” in consultation with the legal professionals concerned, to ensure legal certainty of taxpayers. ” comment défiscaliser en immobilier
In fact of “guarantee of the legal security”, one sees clearly that this text introduces on the contrary an extreme insecurity on the validity of the montages with respect to the very subjective interpretation that can be made by the administration. “It is clear,” notes Stéphane Absolu, director of heritage engineering at Cyrus Conseil, “from an era of contract security to an era of judicialization both for heritage operations and all choices of structuring companies” .
On Saturday 19 January, in a press release entitled “Press release on the abuse of tax law”, Bercy wanted to confirm the validity of the analysis expressed by Professor Frédéric Douet and the notary Arlette Darmon in Les Echos of 17 January 2019 on the question of the gift with reserve of usufruct.
“The concern expressed has no place to be” concludes the press release. In fact, with regard to the expressed fear of a questioning of the dismemberment of property, the new definition of abuse of rights does not call into question the advance transmissions of assets, in particular those for which the donor reserves the right to the usufruct of the transmitted good (provided, of course, that the transmissions concerned are not fictitious).
Note that it is very unusual for Bercy to publish a press release in the middle of the weekend to “indicate that one of the most harmless operations (and in itself the most remote from the abusive behavior because of the major heritage consequences that it carries) does not fall under the new anti-abuse device “(Professor Olivier Négrin from the University of Aix-Marseille).