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FINANCIAL RECTIFICATE FOR 2012
Mr. President,
Ladies and Gentlemen Councilors,
In accordance with the second paragraph of Article 61 of the Constitution, we have the honour to refer to the Constitutional Council the bill of rectificative finance for 2012, including articles 8, 14, 15 ter and 24 quater, as they were finally adopted by Parliament.
In support of this referral, we develop the following grievances:
Article 8 of the bill of rectificative finance amends the procedure for the right to visit and seizure by creating specific provisions for computer searches. A provision of this article is particularly critical: this is the amendment to the scope of the judicial tax investigation procedure.
Indeed, at the end of the bill, it will now be possible to initiate such a procedure in the simple hypothesis "of a manoeuvre intended to derail the administration".
According to theparagraph 2 of Article 28-2 of the Code of Criminal Procedure, tax police officers have jurisdiction to exercise their rights and to seek, throughout the national territory, the offences of tax evasion and assimilated by the General Tax Code only "where there are presumptions characterized that the offences provided for in these articles result from one of the conditions provided for in 1° to 3° of Article L. 228 of the Book of Tax Proceduresand the offences associated with them." The legislator has therefore specifically regulated the conditions for the exercise of the jurisdiction of these agents in order to limit the exercise of their investigative rights in the search for and recognition of offences of tax evasion and related offences in particularly serious cases of fraud.
The authorization given in this bill to the agents of the "tax police" to carry out all acts of tax investigation in the presence of a mere presumption of the existence of any maneuver committed by a taxpayer intended to "get away from administration" shall not be in conformity with the objective of intelligibility and accessibility of the law laid by the Constitutional Council or with the requirements of the individual freedom of respect due to private life and the
In addition, the new drafting article 28-2 of the Code of Criminal Procedure, the purpose of which is, however, to supervise the competence of tax services agents, without any practical and useful scope not only the first three conditions in the original text (1° to 3° of Article L. 228 of the Tax Procedures Book) but also the fourth condition in the bill.
The competence of the tax police officers seems to become a principle competence, which is in fact subject to no real condition, even though the initial legislator had heard it strictly supervised.
However, at the end of a well-established jurisprudence, the Constitutional Council constantly reminds the legislator that it is "to exercise its full competence under the Constitution and, in particular, article 34; that the full exercise of this competence and the objective of constitutional value of intelligibility and accessibility of the law, which stems from articles 4, 5, 6 and 16 of the Declaration of Human and Citizen Rights of 1789 that it must indeed premunite the subjects of law against an interpretation contrary to the Constitution or against the risk of arbitrariness, without deferring to administrative or judicial authorities the task of setting rules whose determination has been entrusted by the Constitution only to the law" (see, for example, Decision No. 2006-540 DC of 27 July 2006, Law on Copyright and Neighbouring Rights in the Information Society).
In view of the extremely broad wording used by the legislator in the present case, it is important to emphasize that the new condition does not constitute one and, in practice, removes even any condition in the use of the procedures covered by the law. book of tax procedures and by Code of Criminal Procedure.
Section 14 of the Bill amends theArticle 150-0 D of the General Tax Code to establish a new measure of the surplus-values of disposal of corporate securities on which the donee is taxed in the event of an assignment made less than eighteen months after the donation.
The Government indicated that such a mechanism was intended to end abuse of law as defined in the Government.Article L. 64 of the Tax Procedures Book and avoid, so, that the donor escapes taxation.
As part of the parliamentary debates, the Government and the General Rapporteur have explicitly addressed the abuse of law of the donor to transmit, immediately after the donation, the titles to a corporation controlled by the donor. However, by restricting the scope of this arrangement to transfers less than eighteen months after the donation, the Government has clearly shown that it can only be abusive schemes. The Government's real objective seems to be a tax return measure itself.
The parliamentary debates showed that the Government had hesitated over the period to be taken into account. The original text for a period of two years. However, a short period of detention on the part of society can in no way be sufficient to represent an objective criterion to presume an abusive legal assembly characteristic of an abuse of law.
The Corrigendum Financial Bill provides for the characterization of the donor's intention to avoid taxation, to rely on a subsequent transfer of the donee to any beneficiary of the assignment, without considering whether or not that assignment is an abuse of law.
The donor is therefore assumed to be responsible for the acts performed by the donee. However, in law, abuse can only be characterized by the head of the donor and not by that of the donee, especially in the absence of any agreement between the donor and the donee on a possible transfer of titles by the donee.
Therefore, the proposed framework is not based on objective and rational criteria to combat abuse of law, particularly those discussed in parliamentary debates.
Most importantly, this is an obstacle to the guarantee of rights recognized by the Constitutional Council. The law provides for a presumption of fraud and abuse of law as long as the donee has transferred its shares in the eighteen-month period. The donee does not have any legal basis to challenge such a qualification, as it is tax law to prove otherwise.
Section 14 of the Bill provides, finally, to apply to a donation, the tax of assignment on an expensive basis in addition to the tax regime applicable to transfers on a free basis. This cumulative taxation constitutes an infringement of the principle of equality before taxation by its confiscatory character. It could therefore exceed the taxpayer's contribution faculties. However, under Article 13 of the Declaration of Human and Citizen Rights, the tax "must also be distributed among all citizens because of their faculties". The Constitutional Council previously ruled, in its Decision No.2007-555 DC of 16 August 2007, that "the requirement under section 13 of the Declaration of 1789 would not be met if the tax had a confiscatory character or had an excessive burden on a class of taxpayers under their contributive faculties."
Article 15 ter, introduced through a parliamentary amendment, amends Article L. 135 D of the Tax Procedures Book to derogate from the rules of tax secrecy. This article is a rider since it is not in accordance with the Organic Law of August 1, 2001 on Financial Laws. Indeed, it does not concern "the resources, the expenses, the cash, the borrowing, the debt, the guarantees or the accounting of the State, the nature, the amount and the allocation of the resources and expenses of the State, and the budgetary and financial balance resulting from it".
Introduced by an amendment filed by the Government, which added to section 24 at the first reading of the bill to the National Assembly, section 24 quater introduces a tax credit for companies employing employee employees equal to 4% in 2013 of the gross payroll for remuneration less than or equal to 2.5% of the CIMS and then to 6% in 2014.
The late submission of this amendment has not been studied and evaluated has not allowed the legislator to properly assess the consequences of such a system on public finances, even though it represents, according to government indications, a tax expenditure of approximately 20 billion euros. In 2013 the companies will hold a debt on the state, but this expenditure has not been translated into a finance law for 2013.
The importance of such a system jeopardizes the balance of this bill of finances. This tax credit would have to be included in the version of the bill tabled on the office of the National Assembly, or to be the subject of a rectificative letter with evaluations necessary for the sincerity of parliamentary debates. By amending a measure of this importance the Government has circumvented section 53 of the Organic Law on Financial Laws and infringed on the principle of clarity and sincerity of parliamentary debates.
For all of these reasons, the undersigned members have the honour to ask you, pursuant to the second paragraph of Article 61 of the Constitution, to declare non-compliant with it Sections 8, 14, 15 ter and 24 quater of the bill of correctional finances for 2012.
