Communications from the firm

Another obstacle to the application of the article 119 bis 2 of the French tax code withholding tax

A French company that was a subsidiary of a foreign company was inactive, but a bank account opened in its name had been used to help one of its foreign sister companies, which the tax authorities qualified as a gift subject to the withholding tax under Article 119 bis of the CGI (i.e. the French tax code).

Following a careful reading of the French tax authorities comments published at the BOFiP BOI-RPPM-RCM-30-10-10, Frenkel & Associés referred to its paragraph 10 which states: “companies whose distributions fall within the scope of Article 119 bis 2 of the CGI are understood to be those that come under the tax regime for capital companies as referred to in Article 108 of the CGI and have their real registered office in the French territories where this code is applicable…”.

However, according to the BOFiP, “The notion of registered office must in principle be understood as being the registered office indicated in the articles of association. However, if the registered office appears to be fictitious, the real registered office should be taken to mean the place where the company’s management, administrative and supervisory bodies are, in fact, mainly concentrated. The real seat corresponds to the seat of effective management referred to in most of the international treaties concluded with France” (BOI-IS-CHAMP-60-10-20, no. 1).

It is to be hoped that this interesting argument raised in an original context – but one that is likely to be found again – will be upheld.