Key Benefits:
(Mr. JEAN-FRANÇOIS V.)
The Constitutional Council was seized on 2 October 2014 by the Conseil d' Etat (Decision No 382284 of 2 October 2014), under the conditions laid down in Article 61-1 of the Constitution, of a priority issue The constitutionality posed by Mr Jean-François V., relating to the conformity with the rights and freedoms guaranteed by the Constitution of the paragraph III of Article 2 of Law No. 2011-1977 of 28 December 2011 Finance for 2012.
The Constitutional Council,
Given the Constitution;
SeenOrder No. 58-1067 of 7 November 1958 as amended by the Organic Law on the Constitutional Council;
Given the General Tax Code ;
Due to Act No. 2011-1977 of 28 December 2011 Finances for 2012, in particular Article 2;
In view of the Regulation of 4 February 2010 on the procedure followed before the Constitutional Council on priority constitutionality issues;
In view of the observations made by the applicant, Registered on October 7 and November 8, 2014;
Seen the observations made by the Prime Minister, registered on October 24, 2014;
Seen the documents produced and attached to the file;
Mr. Xavier Pottier, appointed by the Prime Minister, Having been heard at the public hearing on 25 November 2014;
The rapporteur having Heard;
1. Considering that paragraph I of Article 2 of the Law of 28 December 2011 of Finance for 2012 added to the General Tax Code a section Titled " Outstanding Contribution on High Income " ; that the only article 223 sexies in this section imposes an exceptional contribution on high income for taxpayers liable to tax on income; that, pursuant to article 2, paragraph III, of the Act of 28 December 2011: " A.-The I is applicable from the taxation of the income of the year 2011 and until the taxation of the income of the year in respect of which the government deficit of the general government is nil. This deficit is found in the conditions laid down in the second subparagraph of Article 3 of Council Regulation (EC) No 479/2009 of 25 May 2009 on the application of the Protocol on the excessive deficit procedure annexed to the Treaty Establishing the European Community. '
"B.-II applies to gains made in respect of assignments made as of January 1, 2011." ;
2. Considering that, according to the applicant, subject to the exceptional contribution on the high income of the income which had borne, prior to the publication of the law of 28 December 2011, a discharge in respect of taxation The provisions of article 2, paragraph III, of that Act disregard the guarantee of the rights proclaimed by Article 16 of the Declaration of the Rights of Man and of the Citizen of 1789; that, in addition, these provisions would not Principle of equality;
3. Considering that the priority question of constitutionality relates to the words: As from the taxation of income for the year 2011 and " In the first sentence of Article 2, paragraph III, of the Act of 28 December 2011;
4. Considering that Article 16 of the 1789 Declaration states that: Any society in which the guarantee of rights is not guaranteed, nor the separation of powers, has no Constitution " ;
5. 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 , however, deprive legal guarantees of the constitutional requirements; in particular, it cannot, without grounds of general interest, neither harm the legally acquired situations nor challenge the effects which may Legitimate expectations of such situations;
6. Considering that article 2, paragraph 1, of the Act of 28 December 2011 is intended to establish an exceptional contribution on high income " At the expense of taxpayers subject to income tax " ; that this contribution shall have as its basis the amount of income and capital gains withheld for the establishment of income tax, without the application of the rules of quotient defined to the article 163-0 A of the general tax code, increased in accordance with paragraph IV of section 1417 of the general tax code ; that it is calculated by applying a rate of " 3 % of the reference tax income in excess of EUR 250 000 and less than or equal to EUR 500 000 for single, widowed, separated or divorced taxpayers and the reference tax income greater than EUR 500 000 and less Or equal to € 1 000 000 for taxpayers subject to joint taxation " And a rate of " 4 % of the reference tax income of more than € 500 000 for single, widowed, separated or divorced taxpayers and the reference tax revenue fraction of more than € 1 000 000 for taxpayers subject to taxation Common " ; that this contribution is " Declared, controlled and recovered under the same rules and under the same guarantees and sanctions as in respect of income tax " ;
7. Considering that by providing that article 2, paragraph I, of the Act of 28 December 2011 " Is applicable from the taxation of the income of the year 2011 ", the purpose of Article A of paragraph III of the same article is to include in the base of the exceptional contribution on high income both the income in the base of Income tax than other income included in the definition of reference tax income, and in particular income from movable capital for which the income tax exemption under paragraph I of the article 117 quater and Section I of Section 125 A of the General Tax Code in their applicable writing in 2011 From this year 2011;
8. Considering that by including in the base of the exceptional contribution on high incomes the income received in 2011 and having not been the subject of a free collection of income tax, the legislator did not disregard the guarantee The rights proclaimed by Article 16 of the 1789 Declaration;
9. Considering, however, that the exceptional contribution on high income has also been made applicable by the impugned provisions to income received in 2011 subject to the free levies provided for in paragraph I of Article 117 C and paragraph I of article 125 A of the general tax code ; that the taxpayers who received the Income subject to these liberating levies Legitimately waiting for the application of this statutory tax system to be, subject to the payment of other then existing taxes, free of tax in respect of such income; that by applying this new contribution to income that has Was the subject of these income tax deductions, the legislature questioned the effects that could legitimately be expected by taxpayers from the application of the release system; and
10. Considering that the legislator's desire to increase tax revenue does not constitute grounds of general interest sufficient to call into question the effects which could legitimately be expected of a taxation to which the legislature had Conferred a liberatory character for the year 2011; therefore, the words: ' As from the taxation of income for the year 2011 and " Appearing in the first sentence of Article 2, paragraph III, of the Act of 28 December 2011 cannot, without an unjustified infringement of the guarantee of the rights proclaimed by Article 16 of the 1789 Declaration, be interpreted as Allowing to include in the basis of the exceptional contribution on the high income due in respect of income of the year 2011 the income from movable capital subject to the income tax deductions provided for in paragraph I of Article 117 quater and section I of section 125 A of the general tax code ; that, subject to this reservation, the impugned provisions Ignore the requirements of Article 16 of the 1789 Declaration;
11. Considering that the contested provisions, which are not contrary to the principle of equality or any other right or freedom guaranteed by the Constitution, must be declared in conformity with the Constitution,
Decides:
Subject to recital 10, the words: " As from the taxation of income for the year 2011 and " Appearing in the first sentence of Article 2, paragraph III, of Article 2 of the Law of 28 December 2011 of Finance for 2012 are in conformity with the Constitution.
This decision shall be published in the Official Journal of the French Republic and notified under the conditions set out in article 23-11 of the order of November 7, 1958.
Deliberated by the Constitutional Council at its meeting on 4 December 2014, attended by Mr Jean-Louis DEBRÉ, President, Mrs Claire BAZY MALAURIE, Nicole BELLOUBET, MM. Guy CANIVET, Michel CHARASSE and Nicole MAESTRACCI.
Rendu public December 5, 2014.
The President,
Jean-Louis Debré
