Partnerships: French domestic and international tax law perspective
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1 Partnerships: French domestic and international tax law perspective Master II DFA Rennes Law School 1 May 2018
2 2 Introduction
3 Introduction French distinction between corporations and partnerships Two tax and legal approaches of partnerships coexist: mmon law: partnerships do not have necessarily legal personality Civil law: partnerships are usually a legal entity separate from their partners legal personality French (civil law) distinction (subject to some exceptions): Partnerships ( sociétés de personnes ) rporations ( sociétés de capitaux ) PARTNERSHIPS LEGAL Partners' person is fundamental (intuitu personae) Shares are not freely transferable Partners liabilities are unlimited TAX Partners are liable to CIT following the French concept of semi-transparency CORPORATIONS Capital contribution is fundamental Shares are freely transferable Partners liabilities are limited rporations liable to CIT Most of French partnerships may opt for the corporate taxation regime and become taxpayers. nversely, some corporations may opt, under some conditions, for the partnership regime. 3
4 Introduction French concept of semi-transparency French concept of semi-transparency : partnerships are not as such taxpayers, but are tax subjects 1. Tax base is determined at the level of the partnership Tax base determination rules depend on the tax status of the partners and the activity of the partnerships 2. Taxable results so determined is deemed to be attributed to the partners up to the proportion of their shares held in the partnership. 3. Each partner is liable to tax on the results allocated The partners can in some circumstances offset the tax losses generated by the partnership against their own income 4
5 Introduction An isolated interpretation raising difficulties French tax treatment raises several issues, specially in a cross-border context: Applicability of a DTT Characterization and treatment of flows Tax consequences (e.g. location of the partnership, location of the partners) Risks of double taxation or double non taxation 5
6 Introduction Agenda 1 The treatment of French partnerships 1.1 French domestic rules and territoriality principle 1.2 Application of Double Tax Treaties to French partnerships 2 The treatment of foreign partnerships 2.1 Treatment of French source income from a French perspective 2.2 Treatment of foreign source income through a foreign partnership 6
7 7 1- The treatment of French partnerships
8 1- The treatment of a French partnership Issues considering taxation of non resident partner of a French partnership These questions revolve around the determination of the applicable DTT: The DTT between France and the State of source of the income The DTT between France and the State of residence of the partners Some issues have been solved by the nseil d Etat but others remain unsolved 8
9 Domestic rules and territoriality principle
10 1- The Treatment of French partnerships 1.1- Domestic rules and territoriality principle OECD Position: OECD position: DTT does not apply to partnerships but may be, in some circumstances, applicable to partners French position: Profits generated by French partnerships are taxed in France at the level of its members whether the partners are residents or not No PE in France (nseil d Etat, Société Kingroup Inc. case) In a DTT context : the nseil d Etat (Quality Invest case) considers that the French partnership is a resident in light of the DTT Only French partnerships can benefit from treaty provisions Foreign country France Non resident partners are taxable in France, even without a PE Partner P Border Equity 10 Applicable DTT
11 Application of DTT to French partnerships
12 1- The treatment of French partnerships 1.2- Application of DTT to French partnerships Inflows: 12 Active income realized in France: o Taxable in France, in the hand of the partner, whether it is a French resident or not Passive income: o Taxable in France whether the partner is a French resident or not o Tax credits? Problem unsolved at this stage. Arguably, if France considers French partnerships as residents, a tax credit should be granted Foreign country France Taxation Foreign country Equity Flow Applicable DTT Partner P Foreign co
13 1- The treatment of French partnerships 1.2- Application of DTT to French partnerships The France/US DTT example (considering the US as the State of source) 13 Withholding tax: o French resident partners of a French partnership: The DTT is applicable (US withholding tax might be applicable) o Foreign partners of a French partnership can not benefit, as such, from the France/US DTT provisions Taxation: o o France retains the right to tax the profits of the partnership whether or not the partners are residents in France US partners of a French partnership are taxed in France Tax credit: o France only grants a tax credit for withholding tax levied by the US for French resident members of a French partnership o Double taxation might occur for foreign partners of a French partnership US France French Foreign country Border Equity Flow Partner US P Foreign Flow US Taxation
14 1- The treatment of French partnerships 1.2- Application of DTT to French partnerships Outflows: If the partnership is explicitly considered as a resident by the DTT: Foreign country Foreign o Provisions on each income category fully apply If the DTT is not explicit: the solution remains unclear. Two possibilities: France P WHT 14 o France might apply the withholding tax based on domestic law; or o Such withholding tax might be reduced by the application of the DTT. This approach seems sustainable in light of the Quality invest and Kingroup case. Foreign country Border Equity Flow Foreign
15 15 2-French treatment of foreign partnerships
16 2- French treatment of foreign partnerships Issues considering taxation of foreign partnerships in France These questions revolve around the determination of the applicable DTT: The DTT between France and the State of residence of the partnership The DTT between France and the State of residence of the partners French case law have had a significant impact on that matter over the years and lots of situations seem to be settled now. Two issues regarding characterization of foreign partnerships have to be considered: Treatment of French source income from a French perspective Treatment of foreign source income through a foreign partnership 16
17 Treatment of French source income from a French perspective
18 18 2- French treatment of foreign partnerships 2.1 Treatment of income from a French perspective The DTT does not contain any provision dealing with partnerships: Jurisprudence The nseil d Etat (Diebold urtage case of 1999) resolved the question of the treatment of French passive income A partnership located in the Netherlands received royalties from a French company The urt analyzed the characteristics of the Dutch partnership: Transparent for both legal and tax purposes The partners were residents of the NL Ruling: the DTT between France and the Netherlands is applicable to the partners of the Dutch partnership France The Netherlands Dutch Border Equity Flow Applicable DTT France P Royalties
19 2- French treatment of foreign partnerships 2.1 Treatment of income from a French perspective The DTT does not contain any provision dealing with partnerships: France French Tax authorities position Full transparency: The partnership is located in a State that has a DTT with France The partners are residents of a State that has a DTT with France The income is considered as the partners income by both the partnership and the partners States The partners are not transparent entities nsequence: The DTT with the partners is applicable Foreign State DTT with France Foreign Border Equity P 19 Flow Applicable DTT
20 2- French treatment of foreign partnerships 2.1 Treatment of income from a French perspective US The DTT contains provisions dealing with partnerships (the France/US DTT example): Active income: France has no right to tax the profits generated at the level of the partnership Exception: the partnership has a PE in France Passive income: application of the FR/US DTT in proportion to the partner s share in the partnership France US French Foreign country P Border Equity 20 Flow Applicable DTT
21 2- French treatment of foreign partnerships 2.1 Treatment of income from a French perspective US The DTT contains provisions dealing with partnerships (the France/US DTT example): The FR/US DTT does not cover situations where the partners are not US resident The treatment depends on its characterization from a French perspective: Opacity: No DTT applicable (i.e. French domestic WHT) Transparency: the DTT between France and the State of residence of the partners should apply provided that the FTA s conditions are fulfilled France? French Foreign country Border Equity P Foreign 21 Flow Applicable DTT
22 Treatment of foreign source income through a foreign partnership
23 2- French treatment of foreign partnerships 2.2- Treatment of income through a foreign partnership Applicability of the DTT The applicability of the DTT depends on the State of source characterization of the partnership France French Taxation The DTT does not contain provisions dealing with partnership: Foreign country 23 The partnership could be considered as a PE Passive income paid to a partnership should be included in the partnership s taxable base as active income Art 7 (OECD model): taxation in both the State of residence and the State of source French Tax de: Exemption (territoriality principle) Passive income Border Equity Flow P Foreign
24 2- French treatment of foreign partnerships 2.2- Treatment of passive income through a foreign partnership 24 French argument: In the Artemis case of 2014, the nseil d Etat had to rule whether or not the French participation exemption regime was applicable to a partnership According to the French, the dividends are directly apprehended by the partners (i.e. the full transparency of the general partnership should apply) The French claimed the benefit of the French participation exemption regime as a result of its indirect holding in the US France US Dividends Border Equity Flow French P Sub US Participation exemption regime
25 2- French treatment of foreign partnerships 2.2- Treatment of passive income through a foreign partnership 25 The urt s ruling: The nseil d Etat refused the application of the regime: The regime is only applicable to direct holdings General partnerships have a legal personality separated from their partners The partnership is not subject to CIT in the US and must be considered, from a French perspective, as a société de personnes The only purpose of the DTT is to allocate the right to tax What if the partnership was a LP, a LLP or, a flow through entity? France US TAX Border Equity Flows Dividends TAX French P Sub US No participation exemption regime
26 26 nclusion
27 nclusion The French tax treatment of partnerships (whether they are French or not) remains unclear on a number of issues Difficulties regarding the semi-transparency of partnerships (i.e. from a French perspective) are still relevant The complexity of the topic and the few cases ruled every year by the French administrative urts does not help clarifying the situation Some French authors advocate for a change towards full transparency of partnerships 27
28 Any questions? THANK YOU FOR YOUR WARM WELCOME!
Partnerships: French domestic and international tax law perspective
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