Legal news

The real estate capital gain realized on the occasion of a real estate sale is taxable on income (IR) and social security contributions.

However, many exemptions exist.

How is a real estate capital gain calculated?

The capital gain is taxable when it comes from a transfer for consideration: sale of real estate or the rights attached, exchange, contribution to a company, etc.

It is calculated in two steps:

• the calculation of the gross capital gain (1), and
• the application of allowances (2).
• The calculation of the gross capital gain

The gross capital gain is the difference between the sale price and the acquisition price.

The sale price is the price mentioned in the deed of sale plus the charges and indemnities paid by the buyer (for example, an eviction indemnity) and reduced on receipt of the costs borne by the buyer. seller (for example, the cost of real estate diagnostics or mortgage discharge costs).

As for the acquisition price, it corresponds to the purchase price or the value that appears in the declaration of inheritance or in the deed of gift.

It is increased:

• acquisition costs (notary fees, registration fees, etc.) of a lump sum of 7.5% of the purchase price or actual costs on receipts; and
• work for a lump sum of 15% of the purchase price for a property held for more than five years or at actual costs on receipts.

Example: for a purchase price of €200,000, fixed valuations allow the price to be increased by €15,000 for acquisition costs and €30,000 for works.

• The application of allowances

To this capital gain apply deductions for duration of detention.

For example, for a property held for 15 years, the seller benefits from a reduction of:

• 60% for IR,
• 5% for social contributions.

For a capital gain of €40,000, only €16,000 will be subject to income tax and €33,400 to social security contributions.

Note

For properties located in certain “tense” areas between supply and demand, an additional 70% reduction is applicable if the transfer allows the construction of collective residential buildings and 85% if it is mainly social and/or intermediate housing.

In practice, this exceptional allowance applies to transfers carried out until December 31, 2022 (provided that the preliminary contract has acquired a certain date between January 1, 2018 and December 31, 2020).

The tax rate of the capital gain: after deduction, the capital gain is taxed on income tax at the rate of 19% and on social security contributions at the rate of 17.2%.

An additional tax is due for capital gains over €50,000, after the allowance.

It is 2% to 6% depending on the amount of the capital gain.

What are the exemptions?

There are many exemptions concerning real estate capital gains, each subject to specific conditions.

Thus, sales of main residences, those whose price is less than €15,000 or sales for the benefit of bodies responsible for social housing.

The capital gain is also exempt when the seller does not own his main residence and uses the money from the sale price to acquire one or when a non-resident sells a dwelling located in France.

In addition, retirees and people who live in social, medico-social establishments, care for the elderly or disabled adults can benefit from an exemption subject to income conditions.

Cabinet Nicolas BRAHIN

Advokatfirma i NICE, Lawyers in NICE

contact@brahin-avocats.com

1, Rue Louis Gassin – 06300 NICE (FRANCE)

Phone : +33 493 830 876 / Fax : +33 493 181 437

www.brahin-avocats.com

To open a bank account in the United Kingdom, certain documents must be provided to the bank concerned, while others may be requested.

• Documents to be provided:
• A valid identity document: identity card, passport, driving license… ;
• Proof of address: EDF bill, telephone bill, rental contract, etc.; and
• Proof of income: pay slips, bank statements, tax form…
• Documents that may be required (especially for non-UK citizens):
• An employment contract or letter from the employer.
• A letter from the university.

It should be noted that the British bank can check the credit history of new customers.

Lawfirm Cabinet BRAHIN

Nicolas BRAHINI Avocat

Master’s Degree in Banking and Financial Law

nicolas.brahin@brahin-avocats.com

1, Rue Louis Gassin 06300 NICE (FRANCE)

Tel : +33 493 830 876 / Fax : +33 493 181 437

www.brahin-avocats.com

The new measures apply to sales of real estate excluding building land for which the calculation in force continues to apply. Currently, you must have owned land for at least 30 years to be fully exempt from capital gains tax. This will still be the case for sales until December 31, 2013.

According to the government, this should encourage landowners to put them up for sale rather than keeping them to reduce the amount of tax as is currently the case.

As of September 1, 2013, for other assets subject to capital gains tax, the exemption will be total after 22 years of ownership compared to 30 years currently. But beware, this exemption concerns the share of income tax due on the capital gain, but does not concern social security contributions! It should be remembered that the total amount of capital gains tax, which currently stands at 34.5%, is made up of both:

• 19% tax on income tax;
• 15.5% social levies (CSG, CRDS and social levy).

In conclusion, after 22 years, sales will escape the 19% income tax, but will remain subject to social security contributions. Only sales of goods owned for at least thirty years will fully escape any taxation.

During the first 5 years of detention, nothing changes, there is still no reduction by duration of detention, as is currently the case.
But as of September 1, 2013, for property other than building land, the rate of the allowance will be tripled from the 6th year of ownership as follows: it goes from 2% to 6% from the 6th year , and remains constant for 16 years, which allows a total reduction of 96% after 21 years of ownership of the property.
Then, with a 4% reduction for the 22nd year of detention, this therefore allows 100% reduction after 22 years of detention.

On the amount of taxable capital gain generated, an exceptional allowance will apply to sales of homes that will take place between September 1, 2013 and August 31, 2014. It is calculated after taking into account the allowance by duration of holding, and applies to both income tax and social security contributions. Once the taxable capital gain has been determined according to the new calculation, a 25% allowance will therefore apply.

This new tax system is therefore clearly more favorable for those who sell a home.
Example :
For a single resident or a married couple under a community regime.
Acquisition on February 1, 2003 for €190,000.
Resale on September 3, 2013 for €420,000.

The sale occurring after 10 full years of ownership, the calculation is made as follows:

• Acquisition price of €190,000 to which are added 14,250 euros of “notary fees” (7.5% of the purchase price by default) and 28,500 euros for work (15% of the purchase price by default), i.e. €232,750
• The taxable capital gain is therefore €420,000 – €232,750 = €187,250

The situation until September 1, 2013:

To which we add the amount of the additional tax for real estate capital gains of more than 50,000 euros in the amount of 6,741 €, i.e. a total tax of 64,882 €.

The transitional situation from September 1, 2013 to August 31, 2014:

To which we add the amount of the additional tax for real estate capital gains of more than 50,000 euros in the amount of 1,966 €, i.e. a total tax of an amount of 40,616 €.

The situation as of September 1, 2014:

To which we add the amount of the additional tax for real estate capital gains of more than 50,000 euros in the amount of €3,595, i.e. a total tax of an amount of €52,515.

file to download:
130924 new capital gains measures (example)

The territoriality of income tax

Persons whose tax domicile is located in France are liable to French income tax due to all of their income from all sources. It is therefore an “unlimited” tax obligation, whatever his nationality, the taxpayer must, in principle, be subject to tax in France on all his income from French or foreign sources. This principle may, however, include derogations resulting from international conventions relating to double taxation.

A person is considered to have his disc domicile in France when :

1. She has her home in France.
The home means the place where the person or his family normally lives, that is to say the place of habitual residence, without taking into account temporary stays elsewhere due to professional needs or circumstances. exceptional. Ex: can be considered as domiciled in France for tax purposes, a person exercising his activity abroad, if his family lives in France.

2. She has her main place of residence in France.
It is enough for a person to have stayed in France for more than 183 days during the same year for them to be deemed to have had their main stay in France for that year.

3. She pursues a professional activity in France.
4. It has the center of its economic interests in France.

This is the place where the person concerned has made his main investments, where he has his seat of business, from where he administers his property.

Summary :

A/ THE DEFINITION OF TAX DOMICILE.

B/ THE IMPACT OF INTERNATIONAL CONVENTIONS.

C/ PERSONS WHO DO NOT HAVE THEIR TAX DOMICILE IN FRANCE.

File to download :
101115 – La territorialité de l’IR

A foundation is defined by article 18 of law n°87-571 of July 23, 1987 on the development of patronage as “the act by which one or more natural or legal persons decide the irrevocable allocation of property, rights or resources to carry out a work of general interest and non-profit”.

The association is a group of people while the foundation is a heritage made up of goods, rights and/or resources and irrevocably assigned to the realization of such a work.

It is a group of legal or natural persons to carry out a common project (as in the case of the association), but an irrevocable financial commitment from its founders with a view to carrying out a non-profit work of general interest. A foundation has no members. A board of directors, a management board and/or a supervisory board directs it.

A foundation pools private capital to work for a public cause.

The endowment fund enjoys legal personality from the date of publication in the Official Journal of the declaration made to the Prefecture. Amendments to the articles of association follow the same procedures.

I – Conditions of existence of a foundation in France :

There are corporate foundations, which can receive public subsidies but are prohibited from donations, bequests, subsidies and appeals to public generosity (but can, since 2003, benefit from donations from their employees).

The first condition for the existence of a foundation, whatever it is, is to be recognized by:

– The Prime Minister (currently Bernard Cazeneuve; address at 57, rue de Varenne, Paris) for foundations recognized as being of public utility;

– The Prefect of the department of their future headquarters.

A foundation is the realization of a work of general interest for a non-profit purpose. The general interest is an evolving tax concept, and this in several varied areas.

A foundation is of a philanthropic, educational, scientific, social, humanitarian, sports, family or cultural nature, or contributes to the enhancement of artistic heritage, the defense of the natural environment, the dissemination of culture, French language and scientific knowledge.

A foundation recognized as being of public utility can be created by an individual, a family, an association, a group of people, individuals or companies, when its purpose is to allocate resources on a perpetual basis.

Thanks to a donation, the founder can organize his foundation. The goods and resources he offers permanently spoils him.

The donation is made by notarial deed if it relates to real estate. The donation only takes effect when the foundation is recognized following the publication of the decree of public utility.

The risks of this situation arise if the founder dies before the acceptance of the endowment by the foundation or the seizure of the property subject to the endowment, before the transfer of ownership has become opposable to the creditors.

The request must be addressed to the prefect of the department where the foundation will have its headquarters with the filing of its statutes.

The Prefect will forward the request to the Ministry of the Interior.

The Minister of the Interior can decide at his sole discretion not to respond to the request or to investigate it.

After his instruction, the Minister of the Interior can transmit the request to the Council of State, which will issue an “opinion”, which the government will not be obliged to follow.

The most advantageous, fiscally, is an endowment fund. Christine Lagarde while she was the minister responsible for “creating, alongside foundations and associations, endowment funds that will be fast, flexible and inexpensive. It can be created by one or more natural or legal persons, for a fixed or indefinite period.

An endowment fund is created by simple declaration of its founders to the prefecture of the department where its head office is located. This declaration must be accompanied by the statutes and contain: the surname, first name, date and place of birth, profession, domicile and nationality of the persons responsible for its administration and a form completed with the information necessary for publication in the Official Journal.

Endowment fund: article 140 of the law on the modernization of the economy of August 4, 2008 for a fixed or indefinite period.

No public funds of any kind may be paid into an endowment fund.

This prohibition may be waived, on an exceptional basis, for a specific work or program of actions, with regard to its importance or its particularity.

Exemptions are granted by joint order of the ministers responsible for the economy and the budget.

The fund may appeal to public generosity after administrative authorization, the terms of which are set by decree.

It is made up of the capital endowments made to it, to which are added the donations and legacies granted. Donations may entitle you to tax reductions in terms of both income tax and corporation tax, in the same manner as donations to associations.

The endowment fund is administered by a board of directors which includes at least three members appointed, the first time, by the founder(s).

Each year, the endowment fund draws up accounts that include at least a balance sheet and an income statement (the deadline being a maximum of six months to publish these accounts).

The fund includes at least one auditor and one deputy.

II – Tax regime of a foundation in France:

For an endowment fund, as for foundations, it is necessary to constitute an initial endowment; but the amount of this is free (subject to the following reservation), contrary to what is required de facto by the Council of State (whose opinion is necessary) for foundations recognized as being of public utility (minimum endowment of 1,500,000 EUR to 2,000,000 EUR, payment in 10 years maximum).

To date, an endowment fund can still be created without an initial capital endowment.

However, from the decree implementing article 85 of law no. 2014-856 of July 31, 2014 (relating to the social and solidarity economy) published in the official journal on August 1, 2014, the founder(s) must justify , at the time the fund is set up, a minimum amount for the endowment (this minimum amount may not, however, exceed EUR 30,000).

The amount of capital for the creation of a corporate foundation cannot be less than EUR 150,000 over 5 years.

The initial endowment of an investment fund may not exceed EUR 30,000.

A foundation pools private capital in order to work for a cause of general interest: in principle, this capital is entirely spent within a defined period of time.

An endowment fund pools assets with a view to capitalizing them.

It is the income from this heritage that is used to serve a work of general interest.

If it meets the requirements of Articles 200 and 238 bis of the General Tax Code, an endowment fund benefits, from its creation, from tax reductions on donations and exemption from transfer duties free of charge on donations and legacies.

Article 200 of the General Tax Code: “Opens the right to an income tax reduction equal to 66% of their amount, sums taken within the limit of 20% of taxable income which correspond to donations and payments, including the express abandonment of income or products, made by taxpayers domiciled in France within the meaning of Article 4 B, for the benefit of: Foundations or associations recognized as being of public utility subject to 2 bis, university foundations or partnership foundations mentioned respectively in articles L. 719-12 and L. 719-13 of the Education Code and, only for employees of the founding companies or of the companies of the group, within the meaning of article 223 A, to which the founding company belongs , corporate foundations, when these bodies meet the conditions laid down”.

These fixed conditions are: “Works or organizations of general interest having a philanthropic, educational, scientific, social, humanitarian, sporting, family, cultural character, or contributing to the development of the artistic heritage, in particular through subscriptions opened to finance the purchase of objects or works of art intended to join the collections of a French museum accessible to the public, for the defense of the natural environment or for the dissemination of culture, French language and scientific knowledge”.

So undertaking to safeguard endangered species corresponds to these conditions. Consequently, it is possible to benefit from tax reductions since the foundation has a specific object of general interest.

A foundation recognized as being of public utility is a permanent institution whose recognition is the subject of a decree by the Council of State, possibly supplemented by external resources and/or services rendered.

A corporate foundation promotes sustainable corporate sponsorship, but its lifespan is more limited, and so are its legal capacities. They cannot receive legacies, nor appeal to public generosity, but can, since 2003, benefit from the donations of their employees (the simplicity is in the creation of the foundation, since it is only necessary administrative authorization).

An arbitrated foundation serves the general interest, so all donations made to these accounts benefit from the tax advantages attached to foundations through this intermediary.

This formula allows management fees to be pooled.

The income tax reduction scheme from which individuals can benefit is equal to 66% of the sums paid, withheld within the annual limit of 20% of taxable income (law of 1 August 2003).

Donations can be sums of money, but also donations in kind (for example, works of art).

File to download:
170223 Fondations en France

• VISA :

In the main, any non-UK resident wishing to set up a company is required to have an “Innovator Visa” or a Start Up Visa.

There are, in fact, several types of visas allowing you to open a company in the UK.

1. Innovator Visa :

• This visa is used for the creation of an innovative company.
• To obtain this visa, you must be supported by a specialized organization: an Innovator Endorsement Body.
• This visa allows you to stay in the UK for a maximum of 3 years.
• It is necessary to justify a minimum investment of £50,000 (GBP) to obtain it.
• A budget of £1270 (GBP) per 28-day period is also required to prove that the person has the necessary resources to live in this country.
• Finally, the visa fee is £1,021 GBP.

1. Start Up Visa :

• This visa is intended for entrepreneurs who wish to bring real added value to the British market by creating a business.
• The project must be supported by a specialized support organization.
• This visa allows you to stay in the UK for a maximum of 2 years.
• The visa fee is £308 (GBP).

1. Other visas :

Alternatively, it is possible to opt for another type of visa.

1. If the person is a leader or potential leader in their field:

• The person is eligible for a Global Talent visa if he/she is a leader in research, art, culture, digital technologies…
• With this visa, it is possible to:
  • Create a business;
  • Be an employee, self-employed or director of a company; and
  • Work in the UK without a job offer.
• Eligibility criteria: the person must prove that he/she is a leader or potential leader by applying for an endorsement.
• This visa can last up to 5 years.

It is possible to extend this visa as long as the person is eligible.

• The person may be eligible to apply to move to the UK after 3 years if they are a leader or 5 years if they are a potential leader.

2. If the person sets up the first UK branch or subsidiary of their business:

• The person may be eligible for a UK Expansion Worker visa (Global Business Mobility) if he/she is working for a foreign company and is planning to set up his/her first branch or subsidiary in the UK
• Eligibility criteria:
  • Be employed in an eligible job; and
  • Receive a minimum salary (defined according to the type of work).
• This visa can last up to 1 year.

It can be renewed as long as the person is eligible.

3. If the person is a graduate of an eligible university:

• It is possible to apply for a High Potential Individual (HPI) visa.
• Eligibility Criteria :
  • Have graduated within the last five years from an eligible university; and
  • Prove that the individual can read, write, speak and understand English.
• This visa allows the individual to stay for up to 2 years.

If the person has the equivalent of a PhD, this visa can last for 3 years.

If the person wishes to stay longer, they will have to change their visa type.

• CREATE AN LLC (LIMITED LIABILITY COMPANY) :

Several steps are necessary to create such a company:

• Choose the name of the company and its executive staff (CEO and secretary).
• Appoint the shareholders and the guarantor.
• Choose the PSC (people with significant control) who will hold more than 25% of the shares.
• Draft the articles and memorandums of association.
• Register the company at Companies House (have an address and a SIC code that determines the scope of the company’s activity).

Registration costs £12 Sterling (GBP) and is usually completed within 24 hours.

• Register as a future Corporate Tax payer on the HMRC (Her Majesty’s Revenue and Customs) website.

• TAXATION:
• Business profits are taxed at 19%.
• Self-employed persons are subject to income tax.
• A business owner must pay social security contributions of 12% for employees paid less than £4,190 per month. Above that, the rate is 2%.

Lawfirm Cabinet BRAHIN

Nicolas BRAHINI Lawyer

Master’s Degree in Banking and Financial Law

nicolas.brahin@brahin-avocats.com

1, Rue Louis Gassin 06300 NICE (FRANCE)

Tel : +33 493 830 876 / Fax : +33 493 181 437

www.brahin-avocats.com