Direct taxation: The European Commission requests France to review two capping measures
European Commission - IP/10/1405 28/10/2010
Brussels, 28 October 2010
The European Commission has formally requested France to amend its legislation governing its tax shield (bouclier fiscal) and the capping of the solidarity tax on wealth (ISF - impôt de solidarité sur la fortune) in order to bring it into line with European Union law, particularly in relation to the free movement of persons, workers and capital. The request takes the form of a reasoned opinion. If France fails to comply with the reasoned opinion within two months, the Commission may refer the matter to the Court of Justice of the European Union.
The tax shield is a cap placed on the combined taxes paid by a taxpayer in France which is fixed at 50% of their income, the remaining amount being eligible for a refund. Without challenging the principle of this capping, the Commission considers that certain aspects of its application are contrary to EU law, particularly with regard to persons who are able to benefit from the tax shield and the taxes which are taken into account in its calculation.
The tax shield does not apply to persons who are not resident for tax purposes in France, even if they earn most of their income in France and are primarily eligible to pay tax in that country. This limitation contravenes the free movement of persons and workers which is provided for under Articles 21, 45 and 49 of the Treaty on the Functioning of the European Union.
There is also provision for a cap on the ISF to ensure that the total amount of the ISF and income tax combined does not exceed 85% of the tax household's taxable net income of the previous year. The application of this cap contravenes EU law in the same way as the tax shield, insofar as the cap only applies to persons who are domiciled in France. This also impedes the free movement of persons and workers which is provided for under Articles 21, 45 and 49 of the Treaty on the Functioning of the European Union.
In addition, the calculation of taxes paid, which calculates the amount equating to 50% and any possible reimbursement, only takes into account the taxes paid in France. This is an obstacle to the free movement of capital provided for in Article 63 of the Treaty on the Functioning of the European Union since it influences the investment decisions taken by French taxpayers; these taxpayers would prefer to acquire securities yielding dividends that are taxed in France and included in the tax shield calculation, rather than purchasing equivalent securities for which they would pay tax in another Member State of the EU or of the European Economic Area and which, consequently, would not be taken into account in the tax shield calculation in the same way.
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