Key Benefits:
(RECTIFICATIVE FINANCE ACT FOR 2012)
The Constitutional Council has been seized, under the conditions laid down in the second paragraph of Article 61 of the Constitution, of the Finance Amendment for 2012, 20 December 2012, 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, Françoise GUÉGOT, MM. Jean-Claude GUIBAL, Jean-Jacques GUILLET, Patrick HETZEL, Philippe HOUILLON, Jean-François LAMOUR, Thierry LAZARO, Mme Isabelle LE CALLENNEC, MM. Dominique LE MÈNER, Alain LEBOEUF, Jean LEONETTI, Mme Céleste LETT, Geneviève LEVY, Véronique LOUWAGIE, MM. Gilles LURTON, Alain MARC, Alain MARLEIX, Philippe Armand MARTIN, Jean-Claude MATHIS, Patrick OLLIER, Mme Valérie PÉCRESSE, 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, MEPs;
On the same day, by MM. Jean-Claude GAUDIN, Pierre ANDRÉ, Gérard BAILLY, Philippe BAS, Michel BÉCOT, Pierre BORDIER, Joël BOURDIN, Mme Marie-Thérèse BRUGUIÈRE, MM. François-Noël BUFFET, François CALVET, Christian CAMBON, Jean-Claude CARLE, Mme Caroline CAYEUX, MM. Gérard CÉSAR, Pierre CHARON, Alain CHATILLON, Gérard CORNU, Raymond COUDERC, Jean-Patrick COURTOIS, Mme Isabelle DEBRÉ, MM. Francis DELATTRE, Gérard DÉRIOT, Mme Catherine DEROCHE, Marie-Hélène DES ESGAULX, MM. Philippe DOMINATI, Michel DOUBLET, Alain DUFAUT, Ambroise DUPONT, Jean-Paul EMORINE, Bernard FOURNIER, Jean-Paul FOURNIER, René GARREC, Mme Joëlle GARRIAUD-MAYLAM, MM. Jacques GAUTIER, Patrice GÉLARD, Bruno GILLES, Mrs Colette GIUDICELLI, MM. Alain GOURNAC, Charles GUENÉ, Michel HOUEL, Alain HOUPERT, Jean-François HUMBERT, Jean-Jacques HYEST, Roger KAROUTCHI, Marc LAMÉNIE, Mme Elisabeth LAMURE, MM. Gérard LARCHER, Daniel LAURENT, Antoine LEFÈVRE, Jacques LEGENDRE, Dominique de LEGGE, Roland du LUART, Philippe MARINI, Pierre MARTIN, Mme Colette MÉLOT, MM. Alain MILON, Albéric de MONTGOLFIER, Philippe PAUL, Jackie PIERRE, 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, Bruno SIDO, Esther SITTLER, Catherine TROENDLE, MM. François TRUCY and Jean-Pierre VIAL, Senators;
On the same day by MM. Christian JACOB, Damien ABAD, Yves ALBARELLO, Julien AUBERT, Sylvain BERRIOS, Xavier BRETON, Olivier CARRÉ, Yves CENSI, Luc CHATEL, Gérard CHERPION, Alain CHRÉTIEN, Mme Marie-Christine DALLOZ, MM. Gérald DARMANIN, Lucien DEGAUCHY, Jean-Pierre DOOR, David DOUILLET, Ms Virginie DUBY-MULLER, MM. Daniel FASQUELLE, Georges FENECH, Mrs Marie-Louise FORT, MM. Yves FOULON, Yves FROMION, Laurent FURST, Bernard GÉRARD, Franck GILARD, Philippe GOSSELIN, Christophe GUILLOTEAU, Michel HERBILLON, Antoine HERTH, Guénhaël HUET, Christian KERT, Nathalie KOSCIUSKO-MORIZET, MM. Jacques KOSSOWSKI, Patrick LABAUNE, Mme Valérie LACROUTE, M. Marc LAFFINEUR, Mme Laure de LA RAUDIÈRE, MM. Guillaume LARRIVÉ, Marc LE FUR, Philippe LE RAY, Lionnel LUCA, Thierry MARIANI, Hervé MARITON, Franck MARLIN, Alain MARSAUD, Patrice MARTIN-LALANDE, Damien MESLOT, Philippe MEUNIER, Pierre MORANGE, Pierre MOREL-A-L ' HUISSIER, Alain MOYNE-BRESSAND, Jacques MYARD, Dominique NACHURY, Jacques PÉLISSARD, Bernard PERRUT, Jean-Frédéric POISSON, Axel PONIATOWSKI, Didier QUENTIN, Franck RIESTER, Eric STRAUMANN, Dominique TIAN, Mme Catherine VAUTRIN, MM. Patrice VERCHÈRE, Jean-Luc WARSMANN, Mme Marie-Jo ZIMMERMANN, MM. Charles de COURSON and Philippe VIGIER, MPs.
The Constitutional Council,
Given the Constitution;
Given the amendedOrder No. 58-1067 of 7 November 1958 Organic Law on the Constitutional Council;
Given the Organic Law No. 2001-692 of 1 August 2001 on financial laws;
Seen statute No. 2009-403 dated April 15, 2009 relating to the application of Articles 34-1, 39 and 44 of the Constitution;
Seen the General Tax Code ;
Seen Tax procedures book ;
Given the criminal procedure code ;
Vu Social Security Code ;
Due to the Government's observations, registered on December 24, 2012;
The rapporteur was heard;
1. Considering that the petitioners and members of the House of Commons defected to the Constitutional Council the amending finance law for 2012; that they challenge the conformity with the Constitution of Article 66; that the Members of the House of Commons also challenge the place in Financial law of Article 28 and conformity with the Constitution of Articles 15 and 19, as well as that of Article 11, paragraph VII, and Article 18, paragraph II;
On the place of Article 28 in the Finance Law Corrigenda:
2. Whereas Article 28 amends Article L. 135 D of the book of tax procedures to amend the rules on access by third parties to information protected by professional secrecy in tax matters for scientific research purposes ;
3. Considering that the applicants complains that these provisions do not reflect in the field that the substantive law relating to financial laws reserves to the laws of finance;
4. Considering that the provisions of article 28 do not concern the resources, the charges, the treasury, the borrowings, the debt, the guarantees or the accounting of the State; that they do not relate to charges of any kind Assigned to legal persons other than the State; that they are not intended to allocate allocations to local authorities or to approve financial conventions; that they are not related to the system of liability Financial for public services officers or for information and control of Parliament On the management of public finances; thus, they are foreign to the field of finance laws as a result of the Organic Law of 1 August 2001 referred to above ; Follows from there that this article was adopted in accordance with a procedure contrary to the Constitution; that it should be declared contrary to the Constitution;
On the 2 of paragraph VII of Article 11:
5. Considering that Article 11, paragraph VII, of Article 11Article 28 (2) of the Code of Criminal ; Recourse to the judicial investigation procedure carried out by tax administration officials in the case of presumptions characterised by a tax offence for which there is a risk of loss of evidence is the result of either: A fictitious or artificial resident tax domicile abroad ', or ' Any other manoeuvre intended to mislead the administration " ;
6. Considering that, according to the applicants, the definition of ' Manoeuvre intended to mislead the administration " Is unintelligible and violates personal freedom and the protection of privacy and the inviolability of the home;
7. Considering that the legislator derives Article 34 of the Constitution, as well as the principle of legality of the offences and penalties resulting from Article 8 of the Declaration of the Rights of Man and of the Citizen of 1789, the obligation to fix itself The scope of criminal law and the definition of crimes and offences in terms that are sufficiently clear and precise; that this requirement is necessary not only to exclude arbitrariness in the delivery of sentences, but also to avoid non-compliance Necessary when searching for offenses;
8. Considering that it is for the legislator to reconcile, on the one hand, the prevention of harm to the public order and the search for offenders, both necessary for the protection of rights and value principles Constitution, and, on the other hand, the exercise of constitutionally guaranteed rights and freedoms; that the number of these rights and freedoms is the protection of privacy derived from Article 2 of the 1789 Declaration and the respect for freedom Individual that article 66 of the Constitution places under the protection of the authority Judiciary;
9. Considering that by allowing certain tax services officers, upon the requisition of and under the supervision of the judicial authority, to conduct judicial inquiries and to receive letters rogatory where there are Presumptions that tax offences result from " Manoeuvre intended to mislead the administration ", the legislator has completed the list of circumstances in which the Minister on the assent of the Committee on Tax Offences may file a complaint and has not amended the procedures and Guarantees which are surrounded by the tax judicial investigation; that it has thus ensured between the prevention of infringements of public order and the search for offenders, on the one hand, and the exercise of constitutionally guaranteed freedoms, of the other A reconciliation that is not unbalanced; that it has no more Disregarded the constitutional protection of individual liberty; that the impugned provisions are not vitiated by unintelligibility; that, as a result, they must be declared in conformity with the Constitution;
On Article 15:
10. Considering that Article 15, paragraph 1,Article 13 of the General Tax, relating to the The income tax, by a 5, relating to the product resulting from the sale for consideration of a temporary usufruct; that it is intended to impose that product under the category of income to which, on the day of the assignment, the proceeds Likely to be provided by the property or the right to which the property relates The temporary usufruct; Article 15, paragraph II, makes paragraph I applicable to transfers for consideration of a temporary usufruct occurring on or after November 14, 2012;
11. Considering that, according to the applicants, those provisions would lead to " Distort the age-old balance of the civil code , would violate the principle of equality before the law by treating the assignments in usufruct and the Transfers in full ownership and have retroactive effect;
12. Considering that by virtue of Article 6 of the 1789 Declaration, the Law " Must be the same for all, either protecting or punishing " ; that the principle of equality does not preclude the legislator from dealing with different situations in different ways, nor that it derogates from equality for reasons of public interest, provided that, in either case, the difference in The resulting treatment is directly related to the purpose of the law that establishes it;
13. 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;
14. Considering that, on the one hand, the contested provisions do not have the effect of treating persons in the same situation differently; that, as a result, the complaint alleging infringement of the principle of equality before the law must be rejected ;
15. Considering that, on the other hand, the provisions of Article 15 of the law referred to, which are applicable to the taxation years which will be due in 2013 for the year 2012, modify, for the only pecuniary transfers which have taken date to date As of 14 November 2012, a tax system of which no constitutional rule imposes the maintenance; that they do not affect legally acquired situations and are therefore not contrary to the guarantee of the rights proclaimed by Article 16 The 1789 Declaration;
16. Considering that Article 15, which does not ignore any other constitutional requirements, must be declared in conformity with the Constitution;
On paragraph II of Article 18:
17. Whereas paragraph I of Article 18 relates to capital gains in the provision of securities, social rights, securities or rights relating thereto, carried out by natural persons in the case of contributions to a society which they control ; that, in particular, it inserts into the general tax code an article 150-0 B ter to replace an optional deferral regime with an optional tax deferral regime; Article 18, paragraph II, makes applicable paragraph I to the Contributions made as of November 14, 2012;
18. Considering that, according to the applicants, these provisions have retroactive effect;
19. Considering that the provisions of article 18, paragraph 1, were contained in the draft amending budget bill deposited on the Bureau of the National Assembly on 14 November 2012; that they are intended to put an end to certain operations Tax optimization; that in deciding that these provisions would be applicable only to contributions which have been certain to date from that date, the legislator has heard that the tabling of the draft law on the Office of the National Assembly should be avoided Shall, before the entry into force of the law, cause effects contrary to the objective Continued; that, as a result, the retroactive effect resulting from article 18, paragraph II, is justified on grounds of general interest; that the provisions of that paragraph, which do not disregard any other constitutional requirements, Must be declared in conformity with the Constitution;
Article 19:
20. Whereas paragraph I of Article 19 modifiesArticle 150-0 D of the General Tax Code ; Value retained to determine the net gain of transfer, contribution, refund or cancellation of securities that were donated or donated in the eighteen months preceding the transfer, contribution, and Refund or cancellation is the value of acquiring these values By the donor, increased the cost of the acquisition on a free basis; Article 19, paragraph II, amends section 167 bis of the general tax code to apply these new provisions in a tax home transfer out of France intervenor within 18 months from donation or hand donation; Article 19, paragraph III, makes applicable paragraphs I and II to donations Manual donations made on or after November 14, 2012;
21. Considering that, according to the applicants, by adopting the contested provisions, the legislator has established a presumption of unfair legal montage which is not based on objective and rational criteria in relation to the objective pursued and, , therefore, disregarded the principle of equality before public office; that the impugned provisions, by preventing the donee from having a legal right to challenge the presumption, would not Guarantee of rights; and the double taxation that may result, for the taxpayer Transferor of securities for which it has already paid duty to transfer free of charge, from the payment of a taxation in respect of the capital gain on a fraction of the value of those securities which has already been subject to the rights of transfer in title Free of charge, would violate the principle of equality before taxes; finally, these provisions would have retroactive effect;
22. 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 according to 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 In particular, in order to ensure respect for the principle of equality, it must base its assessment on objective and rational criteria according to the aims it proposes; that this assessment should not, however, A marked breakdown of equality before public office;
23. Considering that it is clear from the travaux préparatoires that the legislator has heard obstacles to legal arrangements designed to evade the taxation of the capital gains of transferable securities; that it has, for that purpose, intended to subject the A donee of securities disposed of for consideration within 18 months of the donation to the taxation on capital gains as a reference value not the value of the securities when the transfer is free of charge but the value of These securities at the time of their acquisition or subscription by the donor, increased In respect of the free acquisition, except where this value is less than that used in the donation; that it has excluded the application of these new provisions for securities subject to a donation in the The framework for a collective conservation commitment under Articles 787 B or 787 C of the General Tax Code ; Also provided for derogations from the application of these new Provisions in favour of donees in a disability situation corresponding to the second or third categories set out in article L. 341-4 of the Social Security Code, or when the donee or its partner or partner bound by a civil pact Solidarity subject to common taxation is laid off or dies;
24. Considering that the impugned provisions impose additional taxation on the securities donees that is unrelated to their situation but is related to the enrichment of the donor prior to the transfer of ownership of the Securities; that the criterion of the duration between the donation of the assignment for consideration for consideration of the securities is insufficient to presume in an irrebuttable way that the succession of those two transactions occurred only The end of evading the payment of the taxation of capital gains; therefore, the legislator has not Adopted objective and rational criteria in relation to the objective pursued; that, as a result, it failed to meet the requirements of Article 13 of the 1789 Declaration;
25. Considering that, without the need to examine the other grievances, section 19 of the law referred to must be declared unconstitutional;
On section 66:
26. Considering that article 66 is the result of an amendment by the Government at first reading to the National Assembly on 28 November 2012; Competitive employment tax credit " The purpose of which is to finance the improvement of the competitiveness of enterprises " Through, inter alia, investment, research, innovation, training, recruitment, prospecting for new markets, ecological and energy transition and the replenishment of their working capital " ; that this article requires that the company receiving the tax credit retrace the use in its accounts in accordance with these objectives and forbid that it funds an increase in the share of the profits distributed or increases the remuneration of the Persons performing executive duties in the business;
27. Considering that A of paragraph I of Article 66 modifies the general tax code by reinstating an article 244 quater C ; that paragraph I of the latter article provides for the benefit of this tax credit for undertakings imposed on the basis of their actual or exempt profit under the articles 44 sexies, 44 sexies A, 44 septies, 44 octies, 44 octies A and 44 decies to 44 quindecies of the general tax code ; that May also benefit the bodies referred to in Article 207 of the same Code, in particular in respect of remuneration paid to employees assigned to their non-exempt income tax activities;
28. Considering that paragraph II of Article 244 quater C specifies that the tax credit is sitting on the remuneration which undertakings pay to their employees in the calendar year and lays down the arrangements for taking account of such remuneration ; in particular, such remuneration, as defined inArticle L. 242-1 of the Social Security Code for the calculation Social security contributions must not exceed two And half the minimum wage of growth calculated for one year on the basis of the legal duration of the work, plus the number of additional or additional hours, if any, without taking into account the increases to which they give rise That, in order to be eligible for the tax credit, remuneration paid to employees must be deducted for the purpose of determining the income tax or the tax on the companies under the conditions of common law and have Have been regularly reported to social security agencies; Paragraph III of Article 244 quater C, the rate of the tax credit is set at 6 %; that paragraph IV of the same Article allows members of partnerships and groups who are not liable to tax on companies to use the Tax credit in proportion to their rights in such companies or groups, provided that they are liable for tax on the companies or natural persons participating in the operation within the meaning of paragraph 1 of paragraph I of the section 156 of the general tax code ;
29. Whereas the B of paragraph I of Article 66 of the Act referred reverts to the General Tax Code an article 199 ter C; that in accordance with paragraph I of the That section, the tax credit is charged on income tax owing by the taxpayer in respect of the year in which the remuneration taken into account for the calculation of the tax credit was paid; and the excess tax credit Constitutes, for the benefit of the taxpayer, a claim on the State of an equal amount; that That claim shall be used for the payment of income tax due in respect of the three years following that in respect of which it is recognized; that, where applicable, the unused portion shall be refunded at the end of that period; However, for certain undertakings, in particular new enterprises, young innovative enterprises and firms in difficulty, Article 199 ter C, paragraph II, provides that the debt on the State shall be refunded immediately ;
30. Considering that the C of paragraph I of Article 66 of the Act is reinstated in the General Tax Code , a section 220 C under which: " The tax credit defined in Article 244 quater C shall be charged on corporate income tax under the conditions laid down in Article 199 ter C '. ; that it follows from the D of paragraph I of Article 66 of that same law, which restores the c of 1 of Article 223 O of the same code, that, in a group of companies, the parent company is substituted for the companies of the group for the allocation of tax credits Issued by each company of the group under section 244 quater C on the amount of the corporation tax that it is liable to pay under each fiscal year;
31. Whereas paragraph III of Article 66 of the Act referred to the provisions relating to the tax credit shall apply to remuneration paid as from 1 January 2013; however, the rate of the tax credit of 6 % in respect of Remuneration paid in 2014 is set at 4 % for those paid in 2013;
32. Considering that article 66, paragraph IV, of the Act provides that a follow-up committee to the Prime Minister shall be responsible for monitoring the implementation and assessment of the tax credit and that regional committees shall Even in each region; and in accordance with paragraph V: " After consultation with the representative trade unions and trade unions at national level, a law may lay down the conditions for the information of Parliament and of the institutions representative of the staff, as well as the arrangements for supervision By the social partners of the use of the tax credit so that it can effectively contribute to the improvement of the company's competitiveness " ;
33. Considering that Members of Parliament and Senators submit that the presentation of this article resulting from a government amendment did not allow the legislator to properly assess its impact on public finances; In particular, according to MEPs, by means of an amendment, not by the tabling of a bill or a letter of amendment, the Government has " Bypassed " Article 53 of the Organic Law of 1 August 2001 referred to above concerning the presentation of finance bills An amendment to the principle of clarity and sincerity in parliamentary debates; that, according to senators, by way of amendment, the Government wanted to evade the making available to Parliament of an impact assessment Expected by articles 8 et seq. Of Organic Law No. 2009-403 of April 15, 2009 referred to above ; that Members and Senators also argue that The system put in place, in particular because of its conditionality, is unintelligible and that the law infrings the principle of legal certainty, which presupposes that a legislative provision is accessible and intelligible; that, according to Members, the In so far as it excludes undertakings belonging to a A flat-rate tax system, disregards the principle of equality before the law;
34. Considering, in the first place, that by way of amendment an article establishing the " Competitive employment tax credit " In the examination of the text at first reading in the National Assembly, the Government has made use of the right of it to the provisions of the first paragraph of Article 44 of the Constitution; no other constitutional or organic rule Hindered the use of this right;
35. Considering, second, thatArticle 32 of the Organic Law of 1 August 2001 referred to above provides: 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 an amending finance law is characterised by the absence of any intention to distort the broad lines of the balance that it determines;
36. Considering that, on the one hand, the provisions of Article 66 of the third amending finance law for 2012 establishing the " "Competitive employment tax credit", which will not enter into force until 1 January 2013, may not affect the budgetary balance of the year 2012; on the other hand, the legislature considered that the tax credit did not affect the The budgetary balance of the year 2013; that, in any event, 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 to Parliament a New amending finance bill;
37. Considering, in third place, that the contested provisions relating to the calculation of the tax credit base exclude from the scheme undertakings under a flat-rate tax system; that they do not have the effect of Treating persons in the same situation differently; that, as a result, the grievance alleging breach of the principle of equality before the law must be dismissed; and
38. Considering that it follows from all the foregoing that the provisions of article 66 of the law referred to, which are not vitiated by any unintelligibility, must be declared in conformity with the Constitution;
39. Considering that it is not appropriate for the Constitutional Council to raise any question of constitutionality,
Decides:
Articles 19 and 28 of the amending finance law for 2012 are contrary to the Constitution.
Articles 15 and 66 of the same Law, as well as Article 11, paragraph VII, and Article 18, paragraph II, are in conformity with the Constitution.
This decision will be published in the Official Journal of the French Republic.
Issued by the Constitutional Council at its meeting on 28 December 2012, attended by Mr Jean-Louis DEBRÉ, Chairman, 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
