Key Benefits:
(2013 FINANCE ACT)
The Constitutional Council has been seized, under the conditions laid down in the second paragraph of Article 61 of the Constitution, of the Finance Law 2013, the 20 December 2012, by MM. Jean-Claude GAUDIN, Pierre ANDRÉ, Gérard BAILLY, Philippe BAS, René BEAUMONT, Christophe BÉCHU, Michel BÉCOT, Claude BELOT, Jean BIZET, Pierre BORDIER, Mme Natacha BOUCHART, Mr Joël BOURDIN, Mme Marie-Thérèse BRUGUIÈRE, MM. François-Noël BUFFET, François CALVET, Christian CAMBON, Jean-Pierre CANTEGRIT, Jean-Noël CARDOUX, Jean-Claude CARLE, Mme Caroline CAYEUX, MM. Gérard CÉSAR, Pierre CHARON, Alain CHATILLON, Jean-Pierre CHAUVEAU, Marcel-Pierre CLEACH, Christian COINTAT, Gérard CORNU, Raymond COUDERC, Jean-Patrick COURTOIS, Philippe DALLIER, Serge DASSAULT, Mme Isabelle DEBRÉ, MM. Francis DELATTRE, Robert del PICCHIA, Gérard DÉRIOT, Mme Catherine DEROCHE, Marie-Hélène DES ESGAULX, MM. Eric DOLIGÉ, Philippe DOMINATI, Michel DOUBLET, Mme Marie-Annick DUCHÊNE, MM. Alain DUFAUT, André DULAIT, Ambroise DUPONT, Louis DUVERNOIS, Jean-Paul EMORINE, Hubert FALCO, André FERRAND, Louis-Constant FLEMING, Michel FONTAINE, Bernard FOURNIER, Jean-Paul FOURNIER, Christophe-André FRASSA, Pierre FROGIER, Yann GAILLARD, René GARREC, Mrs Joëlle GARRIAUD-MAYLAM, MM. Jacques GAUTIER, Patrice GÉLARD, Bruno GILLES, Mrs Colette GIUDICELLI, MM. Alain GOURNAC, Francis GRIGNON, François GROSDIDIER, Charles GUENÉ, Pierre HÉRISSON, Michel HOUEL, Alain HOUPERT, Jean-François HUMBERT, Jean-Jacques HYEST, Mrs Sophie JOISSAINS, Mrs Christiane KAMMERMANN, Mr Roger KAROUTCHI, Mrs Fabienne KELLER, Elisabeth LAMP, MM. Gérard LARCHER, Daniel LAURENT, Jean-René LECERF, Antoine LEFÈVRE, Jacques LEGENDRE, Dominique de LEGGE, Jean-Pierre LELEUX, Jean-Claude LENOIR, Philippe LEROY, Gérard LONGUET, Roland du LUART, Philippe MARINI, Pierre MARTIN, Jean-François MAYET, Mme Colette MÉLOT, MM. Alain MILON, Albéric de MONTGOLFIER, Philippe NACHBAR, Louis NÈGRE, Philippe PAUL, Jackie PIERRE, Xavier PINTAT, Louis PINTON, Rémy POINTEREAU, Christian PONCELET, Ladislas PONIATOWSKI, Hugues PORTELLI, Sophie PRIMAS, Catherine PROCACCIA, MM. Jean-Pierre RAFFARIN, Henri de RAINCOURT, André REICHARDT, Bruno RETAILLEAU, Charles REVET, Bernard SAUGEY, René-Paul SAVARY, Michel SAVIN, Bruno SIDO, Mme Esther SITTLER, Catherine TROENDLE, MM. François TRUCY, Hilarion VENDEGOU, René VESTRI and Jean-Pierre VIAL, Senators;
On the same day, by MM. Christian JACOB, Bernard ACCOYER, Yves ALBARELLO, Benoist APPARU, Olivier AUDIBERT TROIN, Jean-Pierre BARBIER, Xavier BERTRAND, Jean-Claude BOUCHET, Xavier BRETON, Gilles CARREZ, Yves CENSI, Alain CHRÉTIEN, François CORNUT-GENTILLE, Edouard COURTIAL, Mme Marie-Christine DALLOZ, MM. Gérald DARMANIN, Bernard DEFLESSELLES, Mme Sophie DION, M. Jean-Pierre DOOR, Mme Virginie DUBY-MULLER, M. Daniel FASQUELLE, Mme Marie-Louise FORT, MM. Yves FOULON, Marc FRANCINA, Laurent FURST, Claude de GANAY, Sauveur GANDOLFI-SCHEIT, Bernard GÉRARD, Franck GILARD, Claude GOASGUEN, Philippe GOSSELIN, Mme Anne GROMMERCH, MM. Christophe GUILLOTEAU, Michel HERBILLON, Antoine HERTH, Guénhaël HUET, Sébastien HUYGHE, Christian KERT, Mme Valérie LACROUTE, M. Marc LAFFINEUR, Mme Laure de LA RAUDIÈRE, MM. Marc LE FUR, Bruno LE MAIRE, Pierre LEQUILLER, Philippe LE RAY, Lionnel LUCA, Jean-François MANCEL, Laurent MARCANGELI, Thierry MARIANI, Hervé MARITON, Olivier MARLEIX, Alain MARTY, François de MAZIÈRES, Damien MESLOT, Pierre MORANGE, Pierre MOREL-A-L ' HUISSIER, Jean-Luc MOUDENC, Alain MOYNE-BRESSAND, Jacques MYARD, Dominique NACHURY, Yves NICOLIN, Axel PONIATOWSKI, Mme Josette PONS, MM. Bernard REYNES, Franck RIESTER, Martial SADDIER, François SCELLIER, Mrs Claudine SCHMID, MM. André SCHNEIDER, Fernand SIRÉ, Eric STRAUMANN, Mme Michèle TABAROT, MM. Jean-Charles TAUGOURDEAU, Jean-Marie TÉTART, Dominique TIAN, Catherine VAUTRIN, MM. Patrice VERCHÈRE, Philippe VITEL, Michel VOISIN, Jean-Luc WARSMANN, Mme Marie-Jo ZIMMERMANN, MM. Elie ABOUD, Sylvain BERRIOS, Charles de COURSON, Yves JÉGO, Jean-Christophe LAGARDE and Philippe VIGIER, MEPs;
On the same day by MM. François FILLON, François BAROIN, Jacques Alain BÉNISTI, Marcel BONNOT, Mme Valérie BOYER, MM. Bernard BROCHAND, Dominique BUSSEREAU, Jérôme CHARTIER, Guillaume CHEVROLLIER, Jean-Louis CHRIST, Dino CINIERI, Eric CIOTTI, Jean-Michel COUVE, Charles de LA VERPILLIÈRE, Camille de ROCCA SERRA, Bernard DEBRÉ, Jean-Pierre DECOOL, Rémi DELATTE, Dominique DORD, Mrs Marianne DUBOIS, MM. Christian ESTROSI, Hervé GAYMARD, Mrs Annie GENEVARD, MM. Guy GEOFFROY, Charles-Ange GINESY, Jean-Pierre GIRAN, Philippe GOUJON, Mme Claude GREFF, Anne GROMMERCH, Arlette GROSSKOST, M. Serge GROUARD, Mme Françoise GUÉGOT, MM. Jean-Claude GUIBAL, Jean-Jacques GUILLET, Michel HEINRICH, Patrick HETZEL, Philippe HOUILLON, Jean-François LAMOUR, Thierry LAZARO, Mme Isabelle LE CALLENNEC, MM. Dominique LE MÈNER, Alain LEBOEUF, Jean LEONETTI, Celeste LETT, Geneviève LEVY, Véronique LOUWAGIE, MM. Gilles LURTON, Alain MARC, Alain MARLEIX, Philippe Armand MARTIN, Jean-Claude MATHIS, Patrick OLLIER, Mme Valérie PECRESSE, Bérengère POLETTI, MM. Frédéric REISS, Arnaud ROBINET, Claude STURNI, Lionel TARDY, Guy TEISSIER, Michel TERROT, François VANNSON, Jean-Sébastien VIALATTE, Jean-Pierre VIGIER, Laurent WAUQUIEZ and Eric WOERTH, Deputies,
The Constitutional Council,
Given the Constitution ;
SeenOrder No. 58-1067 of 7 November 1958 amending the Organic Law on the Constitutional Council;
Seen Organic Law n ° 2001-692 of August 1, 2001 on finance laws;
Given the general tax code ;
Seen general local authority code ;
Given the general public ownership code;
Given the social action code and the families ;
Due to the environment code;
Seen financial district code ;
Given the currency and financial code ;
Given the Social Security Code ;
Seen Act No. 88-227 of March 11, 1988 Financial transparency Political life;
In view ofOrder No. 96-50 of January 24, 1996 on the repayment of social debt;
Seen Law n ° 2010-1657 of December 29, 2010 of finance for 2011;
Seen the Law n ° 2011-1978 of December 28 2011 of amending finance for 2011;
In view of the Government's observations Registered on 24 December 2012;
The rapporteur has been heard;
1. Considering that the senators and the requesting members of the House of Commons defected to the Constitutional Council the Finance Law for 2013; that they challenge the conformity with the Constitution of its Articles 9, 12, 13 and 73; that the senators also question The procedure for the adoption of the whole of the law, its sincerity and the conformity with the Constitution of its Articles 22 to 24; that the Members also challenge the place in the financial law of Article 8, Article 51 (I) and Article 104 As well as conformity with the Constitution of Articles 3, 4, 6, 8, 10, 11, 15, 16 and 25;
On the Procedure for adoption of the law as a whole:
2. Considering that, in the opinion of the requesting senators, the presentation and adoption of a preliminary question during the second reading of the draft finance bill for 2013 in the Senate constituted a misuse of procedure; that they do Arguing that, in the absence of a desire to obstruct the opposition during the examination of the project, the adoption of this prior question impeded the proper conduct of the democratic debate, the proper functioning of the constitutional public authorities And the right of amendment guaranteed by Article 44 of the Constitution; , therefore, would have been adopted in accordance with a procedure contrary to the Constitution;
3. Considering that the draft finance bill for 2013 was deposited in the Bureau of the National Assembly on 28 September 2012 and adopted at first reading by the National Assembly on 20 November 2012; the Senate rejected the first part of the Draft finance law for 2013 on 28 November 2012, thus impeding the discussion of the second part of the draft; that after the failure, on 6 December 2012, of the Joint Joint Committee to propose a text on the provisions Remaining in discussion, the National Assembly was seized in a new reading of the draft and adopted it on 14 December 2012; that before the Senate seised of the bill adopted by the National Assembly at rereading, the Chairman of the main group of the Senate majority has tabled a motion opposing the issue of the Draft law under conditions that made it clear that the vote on this motion was intended not to mark a substantive opposition to the text but with a view to speeding up the procedure for the adoption of this text by Parliament, in order to draw The consequences of both the rejection of the bill at first reading in the Senate and the The absence of a majority for the adoption of the draft law on 18 December 2012 during its examination in the Committee on Finance; that after the adoption of this preliminary question on 18 December 2012, the Government requested, in accordance with the provisions of the Fourth paragraph of Article 45 of the Constitution, to the National Assembly for final ruling, which it did on 20 December 2012;
4. Considering that the proper functioning of the democratic debate and, therefore, the proper functioning of the constitutional public authorities, assume that the right of amendment conferred on Members by Article 44 of the Constitution is fully respected And that both parliamentarians and Government can use the procedures available to them for these purposes without hindrance;
5. Considering that this dual requirement implies that it is not manifestly excessive use of these rights;
6. Considering that, in the circumstances in which it took place, the adoption of the preliminary question during the examination of the bill in new reading in the Senate does not vitiate the unconstitutionality of the law referred to; that the procedure for the examination of the draft Law is therefore not contrary to the Constitution;
On the sincerity of the financial law:
7. Considering that the requesting senators maintain that the finance law is insincere, on the one hand, in that it is based on very optimistic economic forecasts and, on the other hand, in that the Government should have updated them " In view of the evolution of the economic commitments of its own economic policy " ; in particular, the financial law should have drawn the consequences of the introduction, in the draft amending budget for 2012, of the " National Pact for Growth, Competitiveness and Employment " ;
8. Considering that the terms of Article 32 of the Organic Law of 1 August 2001 referred to above : The financial laws are sincere in presenting all the resources and burdens of the state. Their sincerity shall be appreciated taking into account the information available and the forecasts which may reasonably be expected to result therefrom " It follows that the sincerity of the financial law of the year is characterized by the absence of intent to distort the broad lines of the balance that it determines;
9. Considering that it is not clear from the elements submitted to the Constitutional Council that the economic assumptions on which the financial law is based are vitiated by an intention to distort the broad lines of the balance of the law referred to ;
10. Considering that the legislature considered that the tax credit inserted in Article 24a, now Article 66, of the third draft amending finance law for 2012 did not affect the budgetary balance of the year 2013; Cause, if the changes in charges or resources were such that it would change the broad lines of budgetary balance, it would be for the Government to submit a draft amending budget to Parliament;
11. Considering that it follows from the foregoing that the complaint alleging the lack of sincerity of the Finance Law must be rejected;
On Article 3:
12. Considering that Article 3 amends the 1 of paragraph I of Article 197 of the General Tax Code in order to establish a New marginal tax bracket at a rate of 45 % for the fraction of income subject to the income tax scale of more than 150 000 euros per share;
13. Considering that, according to the applicants, the creation of an additional section of the graduated scale of income tax leads to a marked breakdown of equality before public office; that they also argue that this A new marginal portion of the income tax structure, which is applied to the particular income category of annuities paid under defined benefit pension plans subject to contributions under the Articles L. 137-11 and L. 137-11-1 of the Social Security Code, would make this income a forfeit tax. Contrary to the respect of taxpayers' ability, the principle of equality and the right to property; that the Council should, therefore, re-examine the compliance of article L. 137-11-1 of the Social Security Code and declare it contrary to the Constitution;
14. Considering, on the one hand, that under Article 6 of the 1789 Declaration of the Rights of Man and the Citizen, the Law " Must be the same for all, either protecting or punishing " ; that the principle of equality does not preclude the legislator from treating different situations differently or derogate from equality for reasons of public interest, provided that, in either case, the difference in treatment Which results in direct relation to the object of the law which establishes it; that it does not result, provided that the principle of equality requires treating persons in different situations differently;
15. Considering that Article 13 of the 1789 Declaration states that: For the maintenance of the public force, and for administrative expenditure, a common contribution is essential: it must also be allocated among all citizens, because of their faculties'. ; that this requirement would not be met if the tax was forfeit or placed an undue burden on a class of taxpayers in relation to their contributory faculties; and that under Article 34 of the Constitution, it is for the legislator to determine, in accordance with the constitutional principles and taking into account the characteristics of each tax, the rules according to which the contribution faculties must be assessed; In order to ensure respect for the principle of equality, it must base its assessment on Objective and rational criteria according to the aims proposed; that this assessment should not, however, lead to a serious breach of equality before public office;
16. Considering, first, that the introduction by Article 3 of a new marginal tax bracket at the rate of 45 % for the fraction of income subject to the income tax scale of more than 150 000 euros per share increases the Tax revenue and increases the progressivity of income taxation; that, in itself, it does not impose undue burdens on taxpayers in relation to their ability to contribute and does not create a marked breach of equality With public payloads;
17. Considering, second, that the income of annuities paid under defined benefit pension plans, which are subject to the income tax schedule under the 1 of paragraph I of section 197 of the general tax code modified by section 3 of the law referred to, are also subject to The exceptional contribution on the high income provided for in Article 223 sexies of the general code of To the general social contribution provided forArticle L. 136-1 of the Social Security, to the Repayment of the social debt provided forArticle 14 of Order No. 96-50 of 24 January 1996 referred to above and Expected contribution by article L. 137-11-1 of the social security code ; that annuities paid as of 2013 are also subject to the Contribution provided for in Article L. 14-10-4 of the Code of Social Action and Families;
18. Whereas, on the one hand, if it is necessary, in order to assess the observance of the principle of equality before public office, to take into account all those charges relating to the same income and paid by the same taxpayer, on the other hand, The contribution provided for inArticle L. 137-11 of the Social Security Code is an imposition on the employer who Is not charged on the amount of the annuity paid; and It should not be taken into account for this assessment;
19. Whereas, on the other hand, the maximum marginal tax rate on annuities paid under defined benefit pension plans shall be increased as a consequence of the amendment provided for in Article 3 and after taking into account the The deductibility of a portion of the general social contribution as well as a fraction of the contribution provided under L. 137-11-1 of the social security code of the plate Income tax at 75.04 % for annuities collected in 2012 and 75.34 % for annuities collected from 2013 onwards; that this new level of taxation places an excessive burden on taxpayers in relation to their faculties Contributory; that it is contrary to the principle of equality before public office;
20. Considering that conformity with the Constitution of an already enacted law may be assessed on the occasion of the examination of the legislative provisions amending, supplementing or affecting its field; that, in this case, the increase in the rate Maximum marginal tax on the income tax structure provided for in the contested article, by its combination, in particular with the application of the maximum marginal rate of the contribution provided for by the article L. 137-11-1 of the social security code in its editor resulting from Law n ° 2011-1978 of December 28, 2011, above, to change the scope of the marginal tax rate for taxpayers' contributions; that, as a result, Article 3 of the law referred to must be regarded as affecting the scope of the section L. 137-11-1 of the Social Security Code ;
21. Considering that, in those circumstances, to remedy the unconstitutionality which is excessive in relation to the contributory faculties of certain taxpayers in receipt of annuities paid under the benefit pension schemes Defined, the Fifth and ninth paragraphs of Article L. 137-11-1 of the Social Security Code and the words : " And less than or equal to EUR 24 000 per month " In the fourth and eighth paragraphs of that same article must be declared to be contrary to the Constitution;
22. Considering that, under these conditions, Article 3 of the law referred to is in conformity with the Constitution;
On Article 4:
23. Considering that Article 4 amends the 2 of paragraph I of Article 197 of the General Tax Code ; that it shall be reduced by 2,336 EUR 2 000 the ceiling of the half-share of the tax reduction resulting from the application of the family quotient; that it brings EUR 661 to EUR 997 the tax reduction of certain taxpayers who benefit from half a share in the Specific social or family situations; and 2 a paragraph under which widowed taxpayers with dependent children, with an additional share of the family quotient, are entitled, under certain conditions, to a tax reduction equal to EUR 672 for that additional share ;
24. Considering that, according to the applicants, the lowering of the ceiling on the advantage provided by the family quotient is contrary to the principle of equality before public office; that Article 4 would lead to a break in equality between the two Taxpayers without children and those with children and even a break in equality between taxpayers with children, depending on the number of children in the tax home; and the applicants submit that this measure is not related to the The legislator's objective to strengthen the progressivity of income tax;
25. Taking the view that, by the contested provisions, the legislator has heard increased tax revenue and reduced the benefit derived from the family quotient of common law in order to strengthen the progressivity of tax while limiting the effects of this Measure for certain taxpayers placed in special situations;
26. Considering that it results from the very purpose of the family quotient mechanism and its capping that taxpayers with dependent children are treated differently, on the one hand, from taxpayers without dependent children and, on the other hand, The number of dependent children; that the ceiling of the family quotient does not call into question the taking into account of the contribution faculties resulting from this difference in situation; that, in any event, Article 13 of the 1789 Declaration Does not require that family expenses be taken into account in the assessment of faculties Contribution may result only from a family quotient mechanism; that by lowering the ceiling of the amount by half-part of the tax reduction resulting from the application of the family quotient from EUR 2 336 to EUR 2 000, the legislator does not Disregarded the requirements of Article 13 of the 1789 Declaration;
27. Considering that Article 4 is otherwise not contrary to the requirements deriving from the tenth paragraph of the Preamble to the Constitution of 1946; that it must be declared in conformity with the Constitution;
On Article 6:
28. Considering that the 3 ° of Article 83 of the General Tax Code is for professional expenses deductible from income for The determination of the income tax base; that Article 6 inserts into this 3 ° two paragraphs relating to the evaluation of travel expenses other than toll, garage or parking and the annual interest relating to the purchase of the Enlisted in the law the principle of a scale in Function of the annual distance travelled and the administrative power of the vehicle within the limit of seven horses;
29. Considering that, according to the applicants, by excluding the self-employed from this measure intended to promote the use of less polluting vehicles, these provisions infringe the principle of equality before the law;
30. Considering that the employees are not, in determining the income tax base, in a situation identical to that of the self-employed; that, as a result, the complaint alleging that the Professional fees deducted from salaries and wages would not be applicable to non-salaried workers must be rejected; Article 6, which does not ignore any other constitutional requirements, must be declared compliant with the Constitution;
On item 8:
31. Considering that Article 8 relates to gifts of natural persons to political parties; that the main purpose of Article 8 is to amend the Href=" /viewTexteArticle.do?cidTexte=JORFTEXT000000321646&idArticle=LEGIARTI000006355325&dateTexte= &categorieLink = cid"> first paragraph of Article 11-4 of Act No. 88-227 of March 11, 1988 to prohibit the same natural person from giving More than EUR 7 500 to one or more political parties during the same year; that paragraph II of the same article amends the second paragraph of 3 of Article 200 of the General Tax Code to set, by consequence, the maximum amount of donations to political parties eligible for a tax reduction of EUR 7 500;
32. Considering that, according to the applicants, paragraph I of this article does not have its place in financial law; that this article would otherwise disregard the requirement of pluralism of the currents of ideas and opinions;
33. Considering, first, that Article 8, paragraph I, which provides for an amendment of the rules on the financing of political life by natural persons, does not apply to resources, charges, cash or cash Loans, debt, guarantees or accounting of the State; that it does not relate to impositions of any kind assigned to legal persons other than the State; that it is not for the purpose of allocating appropriations to the communities Approval of financial agreements; that it is not related to the The pecuniary responsibility of public service officials or the information and control of Parliament on the management of public finances; thus, Article 8, paragraph I, is foreign to the field of financial laws as it results from The Organic Law of 1 August 2001; that it was adopted in accordance with a procedure contrary to the Constitution;
34. Considering, second, that paragraph II of Article 8 sets the maximum amount of donations to political parties eligible for a tax reduction under Article 200 of the General Tax Code at EUR 7 500; that, however, it does not Amend the limit on donations and contributions to political parties entitled to a tax reduction pursuant to Article 200 of the General Tax Code, which remains fixed at EUR 15 000; that, as a consequence, the provisions of paragraph II Of Article 8, which are not separable from paragraph I, shall not have their place in law Finance;
35. Considering that, in consequence, without the need to examine the other complaint raised by the applicants, Article 8 must be declared contrary to the Constitution;
On Article 9:
36. Considering that the main purpose of Article 9 is to submit to the scale of income tax the income distributed by the companies and the investment products by removing the possibility of applying a lump-sum levy That it alters the portion of the general social contribution paid on income from the wealth and the deductible investment income of the income tax base; that it also modifies Dividends on dividends subject to the income tax schedule;
37. Considering that, according to the senators and the petitioners, by submitting to the income tax scale the income distributed by the companies and the investment products collected in 2012 for which the taxpayers had opted for the Tax-free lump-sum collection of income tax, the legislature adopted retroactive tax provisions which would not be justified on grounds of general interest; that, according to the applicants, the conversion of the Lump sum payment in a down payment also affects the The right to property and the freedom to undertake;
38. Considering that the applicants also call into question the modification of the fraction of the general social contribution paid on the wealth income and the investment income deductible from the tax base on the Income, which would create a breach of equality before public office;
39. Taking into account, finally, that the applicants submit that the imposition of the income tax structure on the income of dividends and investment products creates a breach of equality before the public office in that, on the one hand, that income Are subject to social levies at higher rates than social levies on income from activity and replacement and that, on the other hand, their income tax base is wider than that of income from activity And replacement;
40. Considering, first, that the purpose of paragraph IV of Article 9 is to subject, with exceptions, to income tax in respect of the year 2012 the income from movable capital for which the lump-sum debits The income tax under paragraph I of Articles 117 quater and 125 A of the General Tax Code has been As from 1 January 2012; that the B of the same paragraph shall establish a Tax credit for these income tax deductions for the year 2012, in order to avoid double taxation of these income;
41. Whereas in the words of paragraph IV A: " As from 1 January 2012, the levies provided for in I of Articles 117 quater and 125 A of the General Tax Code Release more income to which they apply income tax." ; that, as a result, the provisions of paragraph IV have the effect of making a retroactive effect on the liberating nature of the lump-sum levies provided for Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006069577&idArticle=LEGIARTI000017867029&dateTexte= &categorieLink = cid"> Item I of Articles 117 quater and 125 A of the General Tax Code ;
42. Considering that it is at all times open to the legislature, acting in the field of its jurisdiction, to amend earlier texts or to repeal them by substituting, where appropriate, other provisions; that, in so doing, it cannot Deprive legal guarantees of constitutional requirements; in particular, it would disregard the guarantee of the rights proclaimed by Article 16 of the 1789 Declaration if it dealt with the legally acquired situations of an infringement which is not Justified on grounds of general interest;
43. Considering that the provisions of paragraph IV would have the effect of increasing the taxation to be paid in respect of their personal capital income collected in 2012 by certain taxpayers even as these taxpayers have, in application Of the law, already paid from a tax that released them from their tax obligations under such income;
44. Considering that the legislator's desire to ensure in 2013 additional revenue related to the reform of the rules for the taxation of capital income tax does not constitute grounds of general interest sufficient to call into question Retroactively a taxation to which the legislature had conferred a liberating character and which had already been paid; that, therefore, without the need to examine the other complaints, Article 9 (IV) must be declared to be contrary The Constitution; that, by coordination, it is also necessary to declare contrary to The Constitution the words: " Of the E ", in paragraph VI of the same article, and limit, for the income paid in 2012, the application of the 2 ° of the H in the same paragraph VI to its part corresponding to the repeal of 5 ° 3 of Section 158 of the General Tax Code ;
45. Considering, second, that the second part of article 9, paragraph I, paragraph I, lowers from 5.8 per cent to 5.1 per cent the share of the general social contribution on wealth income and investment income which is allowed as a deduction from income The rate of deduction is thus identical to that of the general social contribution on income from activity, even though the rate of the general social contribution on income from the heritage And investment products remain above the level of the social contribution by 0.7 % Activity income generalised;
46. Considering that the principle of equality before public office does not preclude the legislature, in the exercise of its powers under Article 34 of the Constitution, from making a tax on the basis of another tax deductible or Modifies this deductibility, since by changing the burden on taxpayers it does not result in a marked breakdown of equality between them;
47. Considering, in the present case, that the reduction in the share of the general social contribution on wealth income and investment income allowed for deduction of the income tax base has the effect of increasing revenues And to increase the progressive nature of the overall taxation of wealth and investment income of natural persons; that this reduction in the deductibility, which relates only to the general social contribution to the Wealth income and investment products remains limited; and Impact on the increase in the rate of income tax on wealth and investment products subject to the income tax structure cannot, as a consequence, lead to a marked breakdown of equality before Public payloads;
48. Considering, in the third place, that the B, the 1 ° of the E and the 1 ° of the H in paragraph I of Article 9 make the dividends paid by companies and investment products subject to the scale of income tax; that as a result of the work In preparation, the legislator has heard an alignment of the taxation of dividend income and investment income tax on business income;
49. Considering that, if the legislator has not changed the social levies which weigh on those income, the rates of which are higher than those which weigh on the income of the activity, it has provided for an option, at 2 ° of the E of paragraph I, to derogate from Liability to the scale of income tax in favour of a levy at a flat rate of 24 %, for tax shelters whose investment products do not exceed, for a year, EUR 2 000; that, if it has deleted, at 2 ° du H du Paragraph I, the annual deduction on income distributed by companies provided for by the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006069577&idArticle=LEGIARTI000006307959&dateTexte= &categorieLien=cid"> 5 ° of 3 of article 158 of the general tax code, he maintained the 40 % deduction on the gross amount of income distributed Provided for in 2 ° 3 of this Article 158;
50. Considering that the Constitutional Council does not have a general discretion and a decision of the same nature as that of Parliament; that it cannot ascertain whether the objectives which the legislator assigned could have been achieved by Other means, provided that the terms and conditions adopted by the Act are not manifestly inappropriate for the intended purpose; and that the imposition of the rate of tax on the income tax on capital income is accompanied by a number of Arrangements and derogations; that, by changing the burden on the The legislator did not create a serious breach of equality before the public office;
51. Considering, last, that the purpose of the 5 ° of the E of Article 9, paragraph I, is to increase the rates of the charge levied by the section 125 A of the general tax code that apply to the products of the good and securities for which the identity of the beneficiary Is not communicated to the tax administration; that such coupons and securities are also subject to social levies on goods Placement provided for inArticle 16 of Order No. 96-50 of 24 January 1996 referred to above, by Article L. 14-10-4 of the Code of Social action and families, byarticle 1600-0 F bis of the general tax code and by the Articles L. 136-7 and L. 245-15 of the Social Security Code ; and the change in the rate of the free levy provided by Section 125 A of the General Tax Code has the effect of raising the tax rate on the goods of these coupons to 90.5 %; therefore, that this amendment is made To weigh on the holders of good and securities whose identity is not communicated to the tax administration an excessive burden in respect of that contribution capacity and is contrary to the principle of equality before public office; that, therefore, The provisions of the e and h of 5 ° of the E of article 9, paragraph I, must be declared to be contrary to the Constitution;
52. Considering that it follows from the foregoing that the e and h of 5 ° of the E of paragraph I, paragraph IV and the words: "E" In paragraph VI must be declared to be contrary to the Constitution; that, in order to ensure intelligibility of paragraph VI, it is also necessary to limit the application of the 2 ° of the H of this paragraph to its part corresponding to the repeal of 5 ° 3 of section 158 of the general tax code ; that, for the remainder, section 9 is constitutionally compliant;
On Article 10:
53. Considering that Article 10 modifies the taxation of capital gains from the sale of securities and social rights; in particular, it submits that capital gains to the scale of income tax, while providing for an abatement mechanism on the The amount of net gains from the disposal of securities and social rights, depending on the length of time the securities are held; that it establishes, at the same time, an option tax at a flat rate of 19 % when the transferor completes certain Conditions;
54. Considering that the applicants dispute the abolition of a method of taxation of the capital gains of transferable securities, allowing a specific understanding of the exceptional nature of the realisation of added value; that the new mode of taxation Taxation of this type of income would create a breach of equality before public expense by not taking into account the taxpayer's contributory abilities;
55. Considering that the applicants call into question the institution of two different regimes of taxation according to whether the transferor fulfils certain conditions for the period of holding and participation in the capital and has performed certain functions in the Society; that this taxation, which would not be based on objective and rational criteria in relation to the objective pursued, would be contrary to equality before public office; that they also denounce ' Extreme unintelligibility " The exemption system, which would not allow taxpayers to establish with certainty whether or not they can benefit from it;
56. Taking into account, finally, that the applicants submit that the imposition of the income tax scale on the income of the disposal of transferable securities, while, on the one hand, these capital gains are subject to social charges at rates Higher than social levies on business and replacement income and that, on the other hand, their tax base for income taxation is broader than that of business and replacement income, would create a break-up Equality before public office;
57. Considering, first, that the 1 ° of N of paragraph I of Article 10 amends 200 A of the General Code of the submit the capital gains from the transfer of securities and social rights to the income tax scale; that the E of paragraph I of Article 10 establishes, in Article 150-0 D of the same code, a progressive abatement on the Amount of net gains in transfer of securities subject to the scale of Income tax according to the period of detention of the securities at the date of their transfer; that this abatement may be up to 40 % of the amount of the net gains of transfer where the shares, shares, rights or securities have been held since at least six Years; that the combination of subjugation to the income tax structure and the abatement for the period of detention has the effect of reducing the increase in taxation resulting from the provisions of Article 10 Important;
58. Considering, as a result, that by increasing the taxation on capital gains from the sale of securities while taking into account the length of the holding of these securities to reduce the amount subject to income tax, the Parliament did not introduce tax arrangements that would ignore the taxpayer's ability to contribute;
59. Considering, second, that the 2 ° N of paragraph I of Article 10 maintains, in the 2 bis ofarticle 200 A of the general code Taxes, an option taxation at a flat rate of 19 % of capital gains from the sale of securities or rights of companies engaged in industrial, commercial, craft, agricultural or liberal activities, excluding activities providing for Guaranteed income, financial activities, activities Movable heritage management and real estate activities; that the assignor must have held securities or rights equal to at least 10 % of the voting rights or rights in the social benefits, directly or by person interposed or by Persons of his or her family, for at least two years in the ten years preceding the assignment, and must still hold at least 2 % of the voting rights or rights in social benefits at the date of the assignment; the assignor must Have exercised continuously in the five years preceding the assignment Executive or control functions or an employee activity within the company;
60. Considering that it is clear from the parliamentary proceedings at the end of which this mechanism was introduced in Article 10 that, through the introduction of this derogating regime, the legislator has heard the enactment of measures to encourage development Economic activities by applying objective and rational criteria according to the aims pursued; that the Constitutional Council does not have a general discretion and decision of the same nature as that of Parliament; that it cannot Whether the objectives assigned by the legislator could have been Achieved by other means, provided that the rules adopted by the law are not manifestly inappropriate to the objective pursued; that the criteria used to qualify for the flat-rate tax treatment at the rate of 19 % are relative to the Domain of the company whose securities or rights are assigned, the length of the holding of such securities, the proportion of such securities in the voting rights or the rights in the social benefits of the company and the exercise of certain Executive or control or employee activity in the company during the period of Five years preceding the assignment; that these criteria, which are not unintelligible, are objective and rational; that they relate to the objective pursued by the legislator;
61. Considering that the derogating taxation mechanism available to taxpayers meeting the above conditions is not cumulative with the holding device for the period of detention provided for by the 1 of article 150-0 D of the general tax code, even though it is subject to conditions of detention; that, by The more favourable tax system does not appear to be disproportionate to the The objective pursued;
62. Considering that, in these circumstances, the provisions of 2 ° N of paragraph I of Article 10 do not conflict with the principle of equality before public office and do not disregard any other constitutional requirement;
63. Considering, in the third place, that it is clear from the travaux préparatoires that by subjecting the capital gains from the transfer of securities to the scale of the income tax, the legislator has heard an alignment of the taxation of the Income from capital gains on business income taxes;
64. Considering that, if the legislator has not amended the social levies weighing on these income, the rates of which are higher than those applicable to income from activity, it has provided for a progressive abatement mechanism to the Income tax, depending on the period of detention of the shares, shares, rights or securities transferred; that it has also rearranged, to the F of paragraph I, a device for the deferral of tax on income tax under the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006069577&idArticle=LEGIARTI000006302749&dateTexte= &categorieLink = cid"> article 150-0 D bis of the general tax code ; that it extended the effects, to B of paragraph III, of an abatement device Provided for in Article 150-0 D of the same code; that it has finally introduced, as mentioned above, at 2 ° N of paragraph I creating a 2 bis in Article 200 A of the same code, an exemption from taxation at a flat rate of 19 % when Certain conditions are met;
65. Considering that the Constitutional Council does not have a general discretion and a decision of the same nature as that of Parliament; that it cannot ascertain whether the objectives which the legislator assigned could have been achieved by Other means, provided that the terms and conditions adopted by the law are not manifestly inappropriate for the intended purpose; that the broadening of the income tax base to capital gains in the sale of securities is accompanied by a certain amount of Number of arrangements and derogating devices; and Burden on taxpayers receiving capital gains from the sale of securities, the legislator has not created a marked breach of equality before public office;
66. Considering that it follows from the foregoing that Article 10 is in conformity with the Constitution;
On Article 12:
67. Whereas paragraph I of Article 12 inserts, after section 0I of Chapter III of Title I of the first part of the book Ier of the General Tax Code, a section 0I bis entitled " Exceptional contribution of solidarity on the very high income of activity " Article 223 sexies A; that paragraph I of this Article provides for the burden of natural persons, under the conditions laid down by the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006069577&idArticle=LEGIARTI000006302200&dateTexte= &categorieLink = cid"> article 4 A of the general tax code, an exceptional contribution of 18 % on the fraction of their business income In excess of one million euro and defines the income taken into account for the preparation of this contribution; that paragraph II of Article 223 sexies The contribution shall be declared, established, monitored and recovered in accordance with the same rules and under the same guarantees and sanctions as in respect of income tax; Article 12, paragraph II, of the law referred to provides that the The provisions of paragraph I shall apply for the income of the years 2012 and 2013;
68. Considering that, according to the honourable Members and the requesting senators, this exceptional contribution, added to the maximum marginal rate of income tax provided for in Article 3 of the Finance Law for 2013, as well as the exceptional contribution on High income and social levies, will result in a global tax at the rate of 75 % and thus have a confectionory character; that this exceptional contribution would also undermine the principle of equality before tax arising from Article 13 of the 1789 Declaration, retaining as a tax unit the Natural persons, not the tax centre, by not providing a cap or rebate mechanism and not taking into account family expenses; that the principle of equality between taxpayers according to the nature of the income In particular in that only income from professional activity, not income from capital, is subject to the exceptional contribution; that, according to the applicants, the breach of equality would be aggravated As regards the application of this tax to the gains resulting from the removal of options for purchasing Or the subscription of shares or the gratuitous allocation of shares according to whether the earnings are associated with plans awarded before or after 16 October 2007; that the applicants also submit that this contribution, which cannot be Separate from the income tax itself, thus deprive the taxpayer of his property; that the institution of such a contribution would contravene the principle of annuality of tax and would disregard the requirements of clarity and sincerity of the debate Parliamentary;
69. Considering that Article 6 of the 1789 Declaration states that: The law ... must be the same for all, either that it protects, or that it punishes " ; that the principle of equality does not preclude the legislator from treating different situations differently or derogate from equality for reasons of public interest, provided that, in either case, the difference in treatment Resulting from it being directly related to the object of the law that establishes it;
70. Considering that Article 13 of the 1789 Declaration states that: For the maintenance of the public force, and for administrative expenditure, a common contribution is essential: it must also be allocated among all citizens, because of their faculties'. ; that this requirement would not be met if the tax was forfeit or placed an undue burden on a class of taxpayers in relation to their contributory faculties; and that under Article 34 of the Constitution, it is for the legislator to determine, in accordance with the constitutional principles and taking into account the characteristics of each tax, the rules according to which the contribution faculties must be assessed; In order to ensure respect for the principle of equality, it must base its assessment on Objective and rational criteria according to the aims proposed; that this assessment should not, however, lead to a serious breach of equality before public office;
71. Considering that by establishing the exceptional contribution of solidarity on the very high income of activity, the legislator introduced, in respect of the income of the years 2012 and 2013, a tax based solely on business income Which he retained for this exceptional contribution, in the extension of income tax, a tax rate of 18 % applied to the fraction of those income exceeding the threshold of one million euros per natural person;
72. Considering that the income of professional activity taken into account for the establishment of this exceptional contribution includes salaries and wages defined to the section 79 of the general tax code, excluding unemployment and pre-retirement benefits and distributions and earnings Mentioned at section 80 quindecies of the general tax code, the remuneration allocated to the managers and associates of the corporations Limited and assimilated undertakings, industrial or commercial profits, non-commercial profits and agricultural profits when they arise from an activity carried on in a professional capacity, the advantages resulting from free allocations Stock options and gains from purchasing options Or subscription of shares with the exception of those who, for the shares allocated on or after October 16, 2007, are subject to the contribution of the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006073189&idArticle=LEGIARTI000017731385&dateTexte= &categorieLink = cid"> article L. 137-14 of the social security code ; that these income is already subject to tax on income from the tax home ;
73. Considering that the legislature adopted the principle of taxation on income by natural person without taking into account the existence of the tax centre; that, by the effect of this exceptional contribution based on income from activity Of natural persons in excess of EUR 1 million, two tax centres benefiting from the same level of income resulting from professional activity may be subject to this contribution or, on the contrary, to be exempt, according to the Income distribution among the taxpayers composing this household; By submitting to this exceptional contribution the income of natural persons, without taking into account, as in the taxation of all income tax on income and the exceptional contribution provided for by Article 223 sexies The general code of taxes, the existence of the tax centre, the legislature has disregarded the requirement to take account of contributory faculties; thus, it has disregarded the principle of equality before public office;
74. Considering that it follows from the above, and without the need to examine the other grievances, in particular those drawn from the Threshold effects " And the confectionory character of that imposition would be contrary to the principle of equality before public charges, that Article 12 should be declared contrary to the Constitution;
On Article 11:
75. Considering that Article 11 modifies the taxation of the gains and benefits derived from the exercise of an option to subscribe or purchase shares or the acquisition of free shares allocated as of September 28, 2012, to submit them to the scale Income Tax; and
76. Considering that the applicants challenge the new scheme for the taxation of earnings relating to plans for the subscription or purchase of shares and the benefits corresponding to the value of the shares allocated free of charge; Taxation, placing the beneficiaries of such gains and benefits greater than that affecting salaries and wages, would create a breach of equality before the public office; that it would also undermine the Property right;
77. Considering, first, that it is clear from the travaux préparatoires that, by submitting the gains and benefits derived from the exercise of an option to subscribe to or purchase shares or the acquisition of free shares allocated as of 28 From September 2012 to the income tax structure, the legislator has heard an alignment of the taxation of income derived from these gains and benefits on the taxation of business income;
78. Considering that the legislator has, at the same time, amended the social levies weighing on these gains and benefits; that Article 11 (II) A of Article 11 makes them subject to the general social contribution on the business income provided for in the TheArticle L. 136-1 of the Social Security Code and not to social levies on heritage income and That the D of paragraph II of Article 11 modifies the Rate of the wage contribution on the allocation of stock options or stock options and on the allocation of free shares; that the 5 ° of A and the B of paragraph I of Article 11 maintain the allocation of Gains and benefits from the acquisition of shares;
79. Considering that the Constitutional Council does not have a general discretion and a decision of the same nature as that of Parliament; that it cannot ascertain whether the objectives which the legislator assigned could have been achieved by Other means, provided that the terms and conditions set out in the Act are not manifestly inappropriate for the intended purpose; and that the imposition of the income tax structure on the benefits derived from the exercise of an option to subscribe or purchase Shares or the acquisition of free shares is accompanied by a number of Adjustments; that by altering the burden on taxpayers receiving gains and benefits from the exercise of an option to subscribe to or purchase shares or the acquisition of free shares allocated as of 28 September 2012, the legislator did not create a marked break in equality before public office;
80. Considering, second, that the purpose of 2 ° of D of paragraph II of Article 11 is to increase the rate of the wage contribution provided for by the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006073189&idArticle=LEGIARTI000017731385&dateTexte= &categorieLink = cid"> article L. 137-14 of the social security code at 17.5 % and, if the acquired actions remain unavailable during a Certain period, at 22.5 %; that the gains and benefits corresponding to the exercise of an option to subscribe or purchase shares or to the free allocation of shares Are also taxed in the category of salaries and wages in accordance with the provisions of 80 bis and 80 General tax code modified by the a of paragraph 1 A of paragraph I and the B of paragraph I of Article 11, respectively; that these benefits are, moreover, subject to the general social contribution in application of articles L. 136-2, L. 136-5 and L. 136-6 of the social security code modified by article 11, paragraph II, A, B and C And, consequently, the contribution for the repayment of the social debt provided forArticle 14 of the Order No. 96-50 of January 24, 1996 ;
81. Considering that the rates of 17.5 per cent and 22.5 per cent respectively of the second and third subparagraph of paragraph II of paragraph II of Article 11, combined with all other tax rates on gains and benefits corresponding to The removal of an option to subscribe or purchase shares or the gratuitous allocation of shares, after taking into account the deductibility of a fraction of the general social contribution of the income tax base, of Increase the maximum marginal tax rate for these gains and benefits to 72 % and 77 %; that, as long as the other income of the taxpayer subject to the income tax schedule exceeds 150,000 euros for a single taxpayer, the tax rate of these gains and benefits will be at least 68.2 % or 73.2 %; that, therefore, the new tax levels resulting from the increase in the contribution provided for inArticle L. 137-14 of the Social Security Code Taxpayer an excessive burden in respect of that contribution; that they are contrary to the principle of equality before public office; that, therefore, all of the amendments of article L. 137-14 of the social security code provided for in article 11, paragraph II, is contrary to the Constitution ;
82. Considering, in the third place, that, pursuant to Article 11 (1) (a) of Article 11, it is added to paragraph I of Article 80a of the general code of the impôtsun paragraph under which: " The acquisition price of shares acquired before January 1, 1990 shall be deemed to be equal to the value of the share at the date of the removal of the option." ;
83. Considering that it is for the legislator to exercise fully the competence entrusted to it by the Constitution and, in particular, Article 34; that the objective of the constitutional value of accessibility and intelligibility of the law, which flows from the Articles 4, 5, 6 and 16 of the 1789 Declaration, requires it to adopt sufficiently precise provisions and unambiguous formulae;
84. Considering, in the present case, that by adopting the above provisions, the legislator has heard the rules for determining the gain arising from the exercise of an option to subscribe or purchase shares subject to taxation in application Of thearticle 80 bis of the general tax code ; that these provisions should be combined with paragraph IV of the article 11, which provides that paragraphs I to III are Applicable to options on securities and free shares granted on or after September 28, 2012; that they impair, by their contradiction, the objective of the constitutional value of accessibility and intelligibility of the law; that, in Those conditions, the b of 1 of the A of paragraph I of Article 11 must be declared contrary to the Constitution;
85. Considering that it follows from the foregoing that the b of 1 ° of A of paragraph I and the D of paragraph II of Article 11 must be declared to be contrary to the Constitution; that, for the remainder, Article 11 is in conformity with the Constitution;
On Section 13:
86. Considering that paragraph I of Article 13 reform certain provisions of the General Tax Code relating to the solidarity tax on capital due to From the year 2013; that persons holding a heritage in excess of EUR 1.3 million will be liable for this tax; that, in particular, the C of this paragraph shall give a new Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006069577&idArticle=LEGIARTI000006305579&dateTexte= &categorieLink = cid"> draft article 885 O ter of the general tax code, in order to take into account, in the heritage of the Partners or shareholders, elements of the assets of the company not necessary for industrial, commercial, craft, agricultural or liberal activity; that the D of the same paragraph I give a new wording of Article 885 U of the same code Relating to the tariff of that tax; that it submits the fractions of the heritage Greater than 0.8 million, 1.3 million, 2.57 million, 5 million and EUR 10 million at rates, respectively, of 0.5 %, 0.7 %, 1 %, 1.25 % and 1.50 %; that the E of paragraph I repeals Article 885 V on the tax reduction of EUR 300 per Dependant;
87. Considering that the F of the same paragraph restores in the general tax code an Article 885 V bis which provides for the ceiling of the solidarity tax on the Wealth in relation to the sum of this tax and the taxes owed in France and abroad in respect of the income and goods of the previous year; that this cap is fixed at " 75 % of the total net world income of professional expenses of the previous year, after deduction of the only categorical deficits authorized by section 156, as well as exempt income and income tax revenues Subject to a free collection carried out in the same year in France or outside France " ;
88. Whereas paragraph II of Article 885 V bis provides that, for the purposes of the calculation of the cap, " Are also regarded as income earned in the same year in France or outside France:
" 1 ° The interest of the housing savings plans, for the amount withheld at c of 2 ° II of article L. 136-7 of the security code Social ;
" 2 ° Change in the redemption value of good or capital contracts, investments of the same nature, including life insurance contracts, as well as financial instruments of any kind aimed at capitalising on income, subscribed to Enterprises established in France or outside France, between 1 January and 31 December of the previous year, net of payments and purchases made between those same dates;
" 3 ° The products capitalised in the trusts defined in Article 792-0 bis of this Code between 1 January and 31 December of the previous year;
" 4 ° For holders of shares or shares of a corporation liable to tax on corporations, and to a proportion of the rights of the person liable in the profits of the corporation, the distributable profit, as defined in article L. 232-11 of the commerce code, of the last fiscal year ended between January 1 and December 31 of the previous year, reduced The deferred beneficiary referred to in the same Article and increased amounts to be carried in reserve pursuant to the Articles and expenses incurred for the benefit of the carriers. Distributions relating to profits taken into account for the application of this 4 ° shall not be taken into account for the application of I.
" This 4 ° applies where the corporation has been audited by the person liable at any time in the last five years. For the application of this condition, a person liable is considered to control a company:
" (a) Where the majority of the voting rights or rights in the social benefits of the corporation are held, directly or indirectly, by the person liable or through his or her known spouse or common-law partner or ascendants, and Descendants or siblings;
" (b) When it has only the majority of the voting rights or rights in the social benefits of that company under an agreement with other partners or shareholders;
" (c) Or when the decision-making power is actually exercised.
" The person liable is presumed to exercise this control when he has, directly or indirectly, a portion of the voting rights or rights in social benefits equal to or greater than 33.33 % and that no other partner or shareholder holds, Directly or indirectly, a fraction greater than hers.
" The person liable and one or more persons acting in concert shall be regarded as jointly controlling a company when they determine in fact the decisions taken in general assembly;
" 5 ° Capital gains which gave rise to a stay of taxation, in respect of the year of the operation giving rise to the stay and the net gains placed in deferral of taxation " ;
89. Considering that, according to the senators and the applicants, these provisions disregard the principle of equality before taxes and public charges, as well as the right to property; that they argue that, in view of poor performance Fixed-income investments, the alignment of the taxation of capital income on that applicable to labour income and the introduction of a new marginal income tax bracket to 45 %, these provisions lead to a Forfeiture of all income from capital and part of labour income , and that they support, moreover, that by integrating into the calculation of the income tax ceiling " Latents " Which have not been realised and where the taxpayer does not have freely available, these provisions make an erroneous assessment of the contributory faculties; that the applicants also denounce the abolition of the tax reduction of 300 EUR per dependant, as well as the total absence of account of the resulting family burdens, and argue that the ceiling on the solidarity tax on capital should be calculated by reference only to capital income ;
90. Considering, first, that the tax of solidarity on capital is not included in the number of taxes on income; that, by imposing such a tax, the legislator has heard the contribution that the holding of a package confers on the Of property and rights; that the taking into account of that contribution capacity does not imply that only income-producing assets fall within the base of the solidarity tax on capital, nor that such tax should be paid only by means of the Income from taxable property; and
91. Considering that, if Parliament has been able to increase the number of slices and raise the rates of taxation on the heritage, while it has, at the same time, subjected capital income to the scale of income tax and has Maintained the special rates of social levy on capital income, which is because of the fixation at 1.5 % of the maximum marginal rate and the maintenance of the total or partial exclusion of many goods and rights out of the base of this That, under these conditions, the rate of 1.5 %, applicable to the fraction of the net value A taxable heritage of more than EUR 10 million, takes into account the contribution faculties of the persons holding such heritages; in particular, contrary to the support of the applicants, it does not Consequence, by its effects on the assets of these taxpayers, of infringing their right to property;
92. Considering, in the second place, that by creating the solidarity tax on capital, the legislature considered that the composition of the tax household did not, in determining its ability to contribute, have the same impact as in the case of Income tax; that it adopted the principle of home taxation without taking into account a family quotient mechanism; that, taking into account the contribution capacities in other ways, it did not ignore the requirement Pursuant to Article 13 of the 1789 Declaration, which does not impose the existence of a Family quotient; that, by repealingSection 885 V of the General Tax Code, it did not affect the Principle of equality before public office;
93. Considering, in the third place, that by reinstating, in Article 885 V bis of the abovementioned Code, rules on capping that do not carry out a tax calculation by tax and which limit the sum of the solidarity tax on capital and taxes owed to the Income and goods from the previous year to a fraction of the total income of the previous year, the legislature intended to avoid a marked breach of equality before the public office which would result from the absence of such a Capping; that by setting this fraction to 75 %, it did not ignore the requirements Constitutional above;
94. Considering that, in calculating the ceiling, the provisions of paragraph II of Article 885 V bis above include in the income of the taxpayer capitalised interest and products, the distributable profits of financial corporations and the Capital gains or gains that have been the subject of a relief or deferral; and
95. Considering, however, that by so integrating, in the income of the taxpayer for the calculation of the ceiling of the solidarity tax on capital and all taxes owing as income, amounts that do not correspond to Profits or income that the taxpayer has realized or disposed of in the same year, the legislature based its assessment on criteria that ignore the requirement to consider contribution faculties; and Third to sixteenth paragraphs of the F of paragraph I of Article 13 must be declared contrary to The Constitution; likewise, in the seventeenth paragraph of this F, words: " , including those mentioned in the 5 ° of II, " ;
96. Considering that, likewise, if the legislature could, in determining the non-professional heritage of taxpayers, take into account the fraction of the value of the shares or shares corresponding to the assets of the companies which do not Are not necessary for the industrial, commercial, craft, agricultural or liberal activity of the company, it could not establish the tax of solidarity on capital on these assets of the company up to the percentage held in The latter even though it has not been established that those goods are, in fact, to be The disposition of the shareholder or partner; that the legislator has defined a base unrelated to the contributory faculties; and that, as a result, the C of paragraph I of Article 13 must also be declared contrary to the Constitution;
97. Considering that, for the remainder, Article 13 is in conformity with the Constitution;
On Article 15:
98. Considering that Article 15 sets up the scheme for the taxation of capital gains; that, on the one hand, it submits the capital gains realized on the sale of land to be built, for transfers occurring as from 1 January 2015, to the scale In particular, it inserts, after Article 150 VH of the General Tax Code, an Article 150 VH bis under which " Income tax on capital gains realized on the sale of building land referred to in the I of Article 150 VC or related rights, due under the conditions set out in Articles 150 VF to 150 VH, shall not be tax-free On the total net income defined in Article 158 " And adds in Article 200 B of the same Code a paragraph II under which the capital gains referred to in Article 150 VH bis are taken into account for the determination of the total net income defined in Article 158; and 15 deletes, by amending the first subparagraph of paragraph I of Article 150 VC and paragraph II of Article 150 VD of the Code General tax, any deduction for the duration of detention for the Divestitures of land to be built effective as of 1 January 2013; except, however, are excepted from this provision, pursuant to Article 15, paragraph IV, B, the capital gains for which a promise of sale has become certain Before 1 January 2013 and the act of sale is signed before 1 January 2015; moreover, paragraph II of Article 15 maintains, for transfers carried out in the course of 2013 of rights and immovable property other than land to Build, an abatement of 20 % on taxable net gains; and finally, by virtue of the paragraph III of Article 15, are exempt from capital gains realized on the sale of immovable property to bodies managing social housing or to a territorial community, a public institution of inter-communal cooperation or a public institution Land of the State, for assignment to the aforesaid agencies, if the property is disposed of before 31 December 2014;
99. Taking the view that the applicants submit that the global taxation on capital gains made on the occasion of the assignment of a building to be constructed is of a confectionery nature; that, by imposing a difference in taxation within the Of the category of capital gains between land to be built subject to the scale of income tax and other immovable property, the legislature would have disregarded the principle of equality before public expenditure; that by not providing for any Abduction for term of detention with respect to building land, the Parliament would not have taken into account the real contribution capacities of taxpayers; that the exemption of capital gains provided for when the transfer is made to a social lessor for the purpose of social housing, Where such an exemption is not extended to private donors, would undermine the equality before tax; finally, the device would be tainted by unintelligibility;
100. Taking the view that it is clear from the preparatory work that the legislator has heard changes to the scheme for the taxation of capital gains realized on the sale of land to be built in order to increase tax revenue and to fight against the Retention of land resources by the owners; for that purpose, it has submitted to the income tax scale, and not to a levy at the flat rate of 19 %, the capital gains realized on the sale of land to be built for the purposes of the Assignments as from 1 January 2015; that it has deleted any abatement for Period of detention from 1 January 2013, with the exception of transfers for which a promise of sale has acquired a certain date before that date and the act of sale is signed before 1 January 2015;
101. Considering that, however, the capital gains on building land will be subject to the income tax scale as amended by Article 3 of the Act referred to, to the exceptional contribution on high income, provided for by Article 223 sexies of the general tax code, to the social levies provided forArticle 16 of Ordinance No. 96-50 of 24 January 1996, by Article L. 14-10-4 of the Code of Action Social and family, byarticle 1600-0 F bis of the general tax code and by the Articles L. 136-7 and L. 245-15 of the Social Security Code, the mandatory fee paid to the Service and Payments Agency Under section 1605 nonies of the general tax code as well as, where applicable, one of the optional optional taxes that can be Establish the municipalities under Article 1529 of the same code or the organising authority for urban transport, pursuant to Article 1609 h F of the same code; that these provisions may, after deduction of a fraction of the Widespread social contribution, at a maximum marginal rate Tax of 82 % which would have the effect of placing an excessive burden on a class of taxpayers in the light of that contributory capacity; that, in those circumstances, the provisions of Article 15 of the Act derogate from Equality before public office;
102. Considering that it follows from the foregoing that Article 15 must be declared contrary to the Constitution;
On Articles 22, 23 and 24:
103. Considering that Article 22, relating to the tax treatment of capital gains on transfer of shares, changes the method of calculation of the representative share of costs and expenses to be reintegrated into the taxable base at the normal rate of tax In particular, by amending the fourth paragraph of Article 223 F of the General Tax Code, Calculate this share on the gross amount of capital gains Carried out by the undertakings and not on a net result of the capital gains of transfer;
104. Whereas Article 23 sets up, for companies subject to tax on companies, the system of deductibility of the financial expenses of their taxable result; that it inserts in the general tax code an article 212 bis according to which " The net financial expenses relating to amounts left or made available to a non-member company within the meaning of Article 223 A shall be reinstated to the result for a fraction equal to 15 % of their amount " ; that it also inserts Article 223 B bis into the same code, which includes the same provisions for companies belonging to a group within the meaning of section 223 A of the general tax code ; these provisions, which are designed to cap the amount of Financial expenses that businesses can deduct from their taxable income, are not applicable when the total amount of the net financial expenses, according to The case of the undertaking or group is less than EUR 3 million; nor are they applicable to the financial burdens borne in particular by the delegates, dealers and private partners of public partnerships or Private within the framework of the delegation, concession or partnership contracts signed on the date of promulgation of the financial law for 2013; that, pursuant to article 23, paragraph IV, the rate of 15 per cent is increased to 25 per cent for fiscal years Open from January 1, 2014;
105. Considering that Article 24 sets up the deferral mechanism in advance of the deficits of companies subject to tax on companies by substituting, at first sentence of the third paragraph of paragraph I of section 209 of the general tax code, the rate of 50 % to that of 60 %; That the allocation of prior deficits on the profit in respect of an exercise is now possible only within the limit of one million EUR plus 50 % of the amount corresponding to the taxable profit of that financial year exceeding that first amount;
106. Considering that the requesting senators maintain that these provisions, which are retroactive, undermine the legal certainty of the taxpayer through the modification of the tax treatment of ongoing operations and the legitimate expectations Guaranteed by Articles 2 and 16 of the 1789 Declaration;
107. Considering that it is at all times open to the legislature, acting in the field of its jurisdiction, to amend earlier texts or to repeal them by substituting, where appropriate, other provisions; that, in so doing, it cannot Deprive legal guarantees of constitutional requirements; in particular, it would disregard the guarantee of the rights proclaimed by Article 16 of the 1789 Declaration if it dealt with situations legally acquired an infringement that is not Justified on grounds of general interest;
108. Considering that the provisions of Articles 22, 23 and 24 of the Law referred to, which are applicable to the taxation years which will be due in 2013 for the year 2012, modify tax advantages previously granted, of which no rule They do not affect legally acquired situations and are not, therefore, contrary to the guarantee of the rights proclaimed by Article 16 of the 1789 Declaration;
109. Considering that it follows from the foregoing that Articles 22, 23 and 24, which do not disregard any other constitutional requirements, must be declared in conformity with the Constitution;
On Article 25:
110. Considering that Article 25 establishes a complementary contribution to the exceptional tax on the capitalization reserve defined to the section 23 of Law n ° 2010-1657 of December 29, 2010 aforesaid ; that the insurance companies, mutual insurance companies, are liable for this contribution And provident institutions operating a business in France; that the base of the contribution is the amount of the capitalization reserve of these companies, Determined in accordance with the procedures laid down in the second subparagraph of paragraph I of Article 23; that the rate of that contribution is 7 %;
111. Considering that, according to the applicants, this contribution constitutes a " Hidden tax for holders of life insurance contracts ; that the legislator thus disregarded the objective of constitutional value of accessibility and intelligibility of the law; that, in addition, the determination of the basis of that contribution would lead to differences between societies Insurance against the principle of equality before the law;
112. Taking the view that it is clear from the preparatory work that by introducing this complementary contribution to the taxation of insurance undertakings' capital reserves, the legislator has heard increased tax revenue from the Taxation of insurance undertakings; that, by virtue of the provisions of Article 25, it has defined the basis, rate and procedure for the recovery of that new taxation; that by making all insurance undertakings subject to that tax Referred to in the 1 ° to 6 ° B of paragraph I of article L. 612-2 of the monetary and financial code operating a company in France, it did not submit to different rules Persons placed in an identical situation; that those provisions are not vitiated by unintelligibility; that it follows that the objections must be rejected; that Article 25, which does not disregard any other constitutional requirement, must Be declared constitutionally compliant;
On the Article 51, paragraph I:
113. Considering that Article 51, paragraph 1, of Article 51 inserts a new Article L. 3211-5-1 in the general code of ownership of public persons which alters the legal regime of the transfer of immovable property situated in a State situated in a State forest; that the 2 ° of paragraph I supplements Article L. 3211-21 of the same code in order to define the arrangements for the exchange of timber and forest of the State and of the immovable property of the State located in those forests;
114. Considering that, according to the applicants, paragraph I of this article does not have its place in financial law;
115. Whereas paragraph I of Article 51, which provides for a modification of the rules on the conditions under which the State's immovable property may be transferred or exchanged, relates to the resources of the State; thus, paragraph I Article 51 has its place in a financial law; that it has been adopted in accordance with a procedure in accordance with the Constitution;
On Article 73:
116. Considering thatArticle 200-0 A of the General Tax Code provides for a global limitation on income tax The tax advantage resulting from certain deductions, reductions and tax credits; that, in its pre-tax wording, this cap leads to the total of the tax benefits that are considered cannot be reduced The amount of tax payable in excess of the amount of 18 000 euros and an amount equal to 4 % of taxable income;
117. Considering that article 73, paragraph 1, A, gives a new wording of article 200-0 A; that the first paragraph of that article sets the ceiling on the reduction of income tax that may be available for certain benefits at 10 000 euros , however, excluded from this ceiling the benefits referred to in Articles 199 undecies A, 199 undecies B, 199 undecies C and 199 unvicies, applicable to the tax reductions granted to securities, respectively, of the investment Overseas real estate, overseas productive investment, investment in Social housing overseas and investment in public limited-liability companies which exclusively carry out capital financing of cinematographic or audiovisual works; that, for these four exceptions, the second paragraph of 1 provides for An increase in the cap on the sum of EUR 18 000 and 4 % of taxable income; that, on the other hand, certain tax advantages remain excluded from any overall ceiling; that is, in particular, of the reduction Of the tax under Article 199 granted in respect of expenses incurred in respect of Complete restoration of a building built in protected areas, degraded former areas and protected areas and subject to a clean, flat-rate cap;
118. Considering that the applicants submit that, by excluding certain tax advantages from this block cap and by creating two separate ceilings, one lump sum and the other both flat-rate and proportionate to taxable income, these Provisions infringe the principle of equality before the law and public charges; furthermore, the complexity of the provisions would undermine the objective of the constitutional value of accessibility and intelligibility of the law; Senators submit that by applying the reduction of Ceiling on real estate transactions in progress, these provisions are retroactive in nature and undermine the principle of legal certainty;
119. Considering, first, that the complexity of the law alone cannot undermine the objective of the constitutional value of accessibility and intelligibility of the law; that the provisions of Article 73 do not Themselves this goal;
120. Considering, second, that it is clear from the travaux préparatoires that, by adopting Article 73, the legislator has heard that the fairness of this system has been strengthened and that the tax is more progressive; that, at the same time, it wished not to Weaken the incentive nature of certain tax reduction and credit schemes designed to promote, in particular, the development of employment and the provision of social housing overseas and the restoration of built buildings;
121. Considering that it is open to the legislator to fix, in accordance with the aims proposed by the legislator, different limitations to the tax advantages that it establishes, provided that it is based on objective and rational criteria according to the aims And that it does not result in a serious breach of equality before public office;
122. Considering, however, that, on the one hand, the law referred to proceeds with a significant increase in income tax; that, on the other hand, the first paragraph of Article 200-0 A, as set out in Article 73, establishes the overall capping of the Most of the tax benefits to a lump sum; and, at the same time, leave a ceiling proportional to the taxable income applicable to two classes of tax benefits attached to investment transactions, Legislator has allowed certain taxpayers to limit the progressivity of the tax on the Income under conditions that result in a marked breakdown of equality before public office;
123. Considering, therefore, that in the fourth paragraph of Article 73, the words: " And an amount equal to 4 % of the taxable income used as the basis for the calculation of income tax under the conditions laid down in Article 197 Must be declared to be contrary to the Constitution; that, for the remainder, the provisions of Article 73, which in any case have no retroactive effect, do not ignore any constitutional requirements and must be declared in conformity with The Constitution;
Article 104:
124. Considering that Article 104, paragraph 1, inserts a new paragraph Ia into article L. 515-19 of the Environment Code which defines the conditions under which, in areas for which a risk prevention plan Technology is approved, the operators of the facilities at the origin of the risk and the local authorities or their groups participate in the financing of the work prescribed to the natural persons owning a dwelling; Paragraph II modifies section 200quater A of the general tax code to offset the effect of these investments on eligible expenses The tax credit provided for in this section and on recoveries of refunds;
125. Considering that, according to the applicants, this article does not have its place in financial law;
126. Considering, first, that Article 104, paragraph I, which lays down conditions for the participation of private persons and local authorities or their groups in the financing of works on housing, does not concern The resources, the charges, the treasury, the borrowings, the debt, the guarantees or the accounting of the State; that it does not relate to impositions of any kind assigned to legal persons other than the State; that it does not For the purpose of assigning allocations to local authorities or approving Financial arrangements; that it is not related to the pecuniary liability regime of public service officials or to the information and control of Parliament on the management of public finances; thus, Article 104 (1) Is foreign to the field of financial laws as set out in the Organic Law of 1 August 2001; that it has been adopted in accordance with a procedure contrary to the Constitution;
127. Considering, second, that paragraph II of Article 104 amends theArticle 200 quater A of the General Tax Code To draw the consequences of the new provisions laid down in paragraph I; that, as a result, the provisions of paragraph II of Article 104, which are not separable from paragraph I, have no place in the law of finance;
128. Considering that, as a result, Article 104 must be declared unconstitutional;
On Article 14:
129. Considering that, by way of derogation fromArticle 641 of the General Tax Code , which sets the deadline for declaring a Succession, Article 641 bis of that Code provides that, for declarations of succession involving immovable property or immovable property situated in Corsica, the period shall be twenty-four months provided that the succession is opened before 31 December 2012; that the 1 ° of Article 14 of the law referred to postpone the expiry of the Five-year exemption system;
130. WhereasArticle 750 bis A of the General Tax Code provides for relief from immovable property situated in Corsica Right of 2.50 % over acts of succession division and the lications of hereditary property established between 1 January 1986 and 31 December 2014; that the 2 ° of Article 14 of the law referred shall postpone the expiry date of this exemption scheme Three years;
131. Considering that Article 1135 of the same Code exempts from the collection of proxies and notarial certificates after death established for the purpose of the settlement of an estate with immovable property situated in Corsica and which have been drawn up before 31 December 2014; that the 3 ° of Article 14 of the law referred to defers the expiry date of this three-year exemption scheme;
132. Considering that Article 1135 bis of the same Code provides for the gradual extinction of the regime for the exemption of transfer rights by death on immovable property and immovable property situated in Corsica, between 31 December 2013 and 1 January 2018; 4 ° of Article 14 of the Act referred to the expiry of this five-year exemption scheme;
133. Considering that the maintenance of the derogating tax system applicable to succession on immovable property situated in the departments of Corsica leads to that, without any legitimate reason, the transmission of such buildings may be exempted from the payment of Rights of transfer; that the new extension of this derogating regime disregard the principle of equality before the law and public office; that, in consequence, Article 14 must be declared contrary to the Constitution;
On paragraph I of Section 16:
134. Whereas paragraph I of Article 16 amendsArticle 232 of the General Tax Code relating to the tax on The first sentence of the first paragraph of this Article, relating to the definition of the urban areas in which the tax may be introduced; that it relaxes the criteria governing the The institution of the tax and extends its application to the municipalities Belonging to an area of continuous urbanization of more than one hundred and fifty thousand inhabitants and less than two hundred thousand inhabitants; that its 2 ° reduced from two years to one year the period for the expiry of which the tax is due; that its 3 ° alters the Rate and rate the rate of that tax by fixing it at 12.5 % of the rental value in the first taxation year and 25 % from the second; that the 4 ° relate from thirty days to ninety consecutive days per year the duration of the occupation of a Housing below which it is viewed as vacant;
135. Considering that the purpose of the taxation instituted by the provisions of Article 232 of the General Tax Code is to encourage The persons liable for this tax to rent the rental units liable to be rented; that it is the result of the constitutional principles of equality before the law and the public charges that the difference in tax treatment established by this Section in respect of persons liable for that tax Is in conformity with the Constitution only if the criteria for subjugation are directly related to the objective pursued; that the said taxation cannot, therefore, strike only habitable, vacant and vacant dwellings Willingness of the holder;
136. Bearing in mind, in the first place, that it cannot be subject to this tax on housing which could be made habitable only at the cost of important works, the burden of which must necessarily be borne by the holder;
137. Considering, in the second place, that it cannot be regarded as vacant for furnished accommodation allocated to the dwelling and, as such, subject, pursuant to paragraph 1 of paragraph I of the section 1407 of the general tax code, the residential tax;
138. Bearing in mind, in the third place, that no accommodation for which the vacancy is attributable to a foreign cause shall be subject to the will of the lessor, thereby impeding their sustainable occupation, for consideration or free of charge, under conditions Under normal conditions of remuneration of the lessor, or objecting to their occupation, under normal conditions of remuneration of the lessor; that, in particular, they must be exempt from housing which is, within a short period of time, to be abolished or to be The object of work in the context of urban planning, rehabilitation or Demolition, or housing that is rented or sold at market price and not found to be a lessee;
139. Considering that, subject to the reservations set out in recitals 136 to 138, the provisions of paragraph I of Article 16 are in conformity with the Constitution;
On the place of other provisions in the law of finance:
140. Considering that Article 44 modifies the tasks entrusted to the Agency for the Management and Recovery of seized and confiscated assets;
141. Considering that Article 95 creates a new Article L. 4424-33-1 in the General Code of Territorial Communities relating to the transfer of Production and propagation of forest plants to the territorial community of Corsica;
142. Considering that these provisions do not concern the resources, the charges, the treasury, the borrowings, the debt, the guarantees or the accounts of the State; that they do not relate to impositions of any kind assigned to Legal persons other than the State; that they are not intended to distribute appropriations to the territorial authorities or to approve financial conventions; that they are not related to the system of the financial liability of agents Public services or the information and control of Parliament on management Public finances; thus, Articles 44 and 95 are foreign to the field of finance laws as set out in the Organic Law of 1 August 2001; that they have been adopted in accordance with a procedure contrary to the Constitution; that they must be Declared contrary to the latter;
143. Considering that there is no place for the Constitutional Council to automatically raise any other matter of conformity with the Constitution,
Decides:
The following provisions of the financial law for 2013 are declared to be contrary to the Constitution:
-Article 8;
-in Article 9, e and h of 5 ° du E of paragraph I, as well as paragraph IV;
-in Article 11, the b of 1 ° du A of paragraph I and the D of paragraph II;
-Article 12;
-in paragraph I of the Article 13, C and, in F, the third to sixteenth paragraphs, as well as the words: , including those mentioned in the 5 ° of II, " In the seventeenth paragraph;
-Articles 14, 15 and 44;
-in the fourth paragraph of Article 73, the words: And an amount equal to 4 % of the taxable income used as the basis for the calculation of income tax under the conditions laid down in Article 197 ;
-sections 95 and 104.
Sections 3, 4, 6, 10, 22, 23, 24 and 25 of the same Act and the remainder of its sections 9, 11, 13 and 73 are in conformity with the Constitution.
Subject to the reservations set out in recitals 136 to 138, paragraph I of Article 16 of the same Law is constitutionally compliant.
By coordination with the repeal of Article 9, paragraph IV, of the same Act, paragraph VI reads as follows: " With the exception of 2 ° G, from 2 ° of H in that it provides for the repeal of 5 ° 3 of Article 158 of the General Tax Code, of the I, II and III of the I, II and III apply to income received on or after 1 January 2013 in respect of income paid on or after 1 January 2012. "
The following provisions of theare contrary to the Constitution L. 137-11-1 of the Social Security Code :
-the fifth and ninth paragraphs;
-in the fourth and eighth paragraphs, the words: " And less than or equal to EUR 24 000 per month ".
This decision shall be published in the Official Journal of the Republic
Issued by the Constitutional Council at its meeting on 28 December 2012, attended by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, MM. Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Mme Jacqueline de GUILLENCHMIDT, MM. Hubert HAENEL and Pierre STEINMETZ.
Public information December 29, 2012.
The President,
Jean-Louis Debré
