Key Benefits:
(EPOUX P.)
The Constitutional Council was seized by the Council on 10 April 2015 Of the State (Decision No 384972 of the same day), under the conditions laid down in Article 61 (1) of the Constitution, of a priority question of Constitutionality raised for Mr and Mrs Jean-Marc P., by CPC Nicolaÿ, from Lanouvelle, Hannotin, lawyer to the Conseil d' Etat and the Court of Cassation, on the conformity with the rights and freedoms guaranteed by the Constitution of the 3 ° 3 of Section 158 of the General Tax Code, in its writing effective until January 1, 2013, registered in the General Secretariat of the Constitutional Council under number 2015-473 QPC.
The Conseil Constitutionnel,
Vu la Constitution;
Vu l'ordonnance n ° 58-1067 du 7 novembre 1958 amended portant loi sur le Conseil constitutionnel;
Vu le general tax code ;
Due to Act No. 2007-1822 of December 24, 2007 of finance for 2008;
Seen Law n ° 2012-1509 of 29 December 2012 of finance for 2013;
In view of the Rules of Procedure of 4 February 2010 on the procedure before the Constitutional Council for questions Priorities for constitutionality;
In view of the observations made for the applicants by CPC Nicolaÿ, of Lanouvelle, Hannotin, registered on 4 May 2015;
In view of the observations made by the Prime Minister, recorded on 6 May 2015 ;
Seen the parts produced and attached to the file;
Me Philippe Rochmann, a lawyer at the Paris Bar, for the applicants and Mr Xavier Pottier, appointed by the Prime Minister, having been heard at the public hearing on 16 June 2015;
The rapporteur was heard;
1. Considering that under 2 ° 3 of Article 158 of the General Tax Code, income from movable capital distributed by Companies liable to tax on companies or a tax equivalent or otherwise subject to this tax, having their registered office in a Member State of the European Community or in a State or territory having entered into a tax treaty with France Avoidance of double taxation in respect of tax on Income and resulting from a regular decision of the competent bodies shall be reduced, for the purposes of calculating income tax, by a proportional reduction equal to 40 % of their gross amount collected; that the taxation of such income has also been the subject of Until 31 December 2011, of a fixed abatement under the 5 ° of 3 of this Article; that under Article 117 c of the same Code, taxpayers who have received income eligible for the proportional deduction may opt for their Coverage of a lump-sum withholding tax on income tax; and From 3 ° 3 of Article 158, in its wording from the Act of 24 December 2007 referred to above, the provisions of 2 ° of 3 of Article 158 shall not apply " Where, in the same year, the taxpayer has collected income on which the levy provided for in Article 117 quater has been effected." ;
2. Considering that, according to the applicants, the impugned provisions establish, in disregard of the principle of equality before the law, an unjustified difference in treatment between the taxpayers who have submitted to the income tax structure of the Income from movable capital eligible for the proportional deduction according to whether or not these taxpayers have opted for the lump-sum payment for other income from movable capital collected in the same year; Argue that the impugned provisions impose a burden on taxpayers Excessive burden in relation to their contributory faculties, in disregard of the principle of equality before public office, as long as the income from movable capital subject to the scale of the tax of 100 % of their amount, taking account of The loss of the proportional deduction, have already been taxed in respect of the corporation tax in the hands of the distributing undertaking; that they also submit that the contested provisions infringe the principle of legality of the Offences and penalties, property rights and article 34 of the Constitution;
On the grievance alleging disregard of the principle of equality before the law:
3. Considering that, according to article 6 of the Declaration of the Rights of Man and the Citizen of 1789, the Act " 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 legislation that establishes it;
4. Considering that the contested provisions establish a difference in treatment between taxpayers who have submitted to the progressive scale of the income tax on income of movable capital eligible for the proportional reduction provided by the provisions of 2 ° of 3 of Article 158 of the general tax code according to whether or not they opted for the levy Lump-sum payment for other capital income As a result of the preparatory work of the Act of 24 December 2007 referred to above , that by adopting the contested provisions, the Legislator has heard a prohibition of the cumulation of the benefit of the proportional and fixed allowance applicable in the event of the taxation of dividends on the progressive scale of income tax, with the option in favour of the lump-sum payment, in order to To avoid the taxpayer " Exercise this option only for dividends received beyond the amount "cleared by the allowance" ;
5. Whereas before the abolition of the fixed abatement provided for in 5 ° 3 of Article 158 of the General Tax Code, The purpose of the impugned provisions was to prevent taxpayers from combining the application of the graduated scale of income tax after taking into account proportional and fixed payments for some of their Capital income up to the amount " Erased " By the abattements and, on the other hand, to the lump-sum debits for the surplus in the event that the marginal rate of income tax would be higher than the rate of this lump-sum levy; thus, the legislator has Founded, in order to lay down the rules for the taxation of income received during the years 2008 to 2011, on a ground of general interest in order to avoid tax optimisation; that the resulting difference in treatment is based on a criterion of Relationship to the object of the law;
6. Considering that the fixed abatement provided for by the 5 ° of 3 of Article 158 has been abolished, as from the income of the year 2012, by the 2 ° of the H Article 9 of the aforementioned Law of 29 December 2012 ; thus, the power of optimisation which the legislator has heard prohibiting by adopting the contested provisions has disappeared for the taxation of the income of the year 2012; that, subsequently, the The contested provisions cannot, without establishing a difference of Treatment unrelated to the objective pursued by the legislator, to have the object or effect of prohibiting the application of the abatement provided by the 2 ° 3 of Section 158 of the General Tax Code to those of capital income subject to the Schedule of Tax on the Income due in 2013 for the year 2012 notwithstanding the collection of other income on which the levy was carried out in 2012 under Article 117 quater of the The same code; that, under that reservation, which is applicable only to the impugned impositions before the date of publication of this decision, the provisions criticised are not contrary to the principle of equality before the law;
On the complaint Lack of awareness of the principle of equality before public office:
7. 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;
8. Considering that, in order to assess respect for the principle of equality before public expenditure, account must be taken of all the taxes imposed on the same income and paid by the same taxpayer; that, on the other hand, there is no To take into account the impositions paid by the distributing company on the profits on which the income from movable capital taxed in the hands of a physical person has been deducted; thus the provisions Does not place an undue burden on the taxpayer in respect of Their own contributory faculties; that they do not lead to a serious breach of equality before public office; that, as a result, the complaint of failure to comply with Article 13 of the 1789 Declaration must be rejected;
9. Considering that, subject to the reservation set out in recital 6, the contested provisions are contrary to neither the principle of legality of offences and penalties nor the right to property, nor to any other right or freedom guaranteed by the Constitution; They must be declared in conformity with the Constitution,
Decides:
This decision shall be published in the Official Journal of the French Republic and notified under the conditions set out in The order of 7 November 1958
Issued by the Constitutional Council at its meeting on 25 June 2015, attended by: Mr. Jean-Louis DEBRÉ, Chairman, Claire BAZY MALAURIE, Nicole BELLOUBET, MM. Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Lionel JOSPIN and Nicole MAESTRACCI.
Public service June 26, 2015.
