News

40 % penalty for bad faith and statute of limitations

By a decision of the Paris Administrative Court of Appeal of March 11, 2020, the Firm obtains a discharge from the 40% penalty for bad faith applied to a reassessment resulting from the reinstatement in the taxable income of the applicant company of the amount of the balance of a collective shareholders’ current account that it could not justify.

In this case, the “Rapporteur public” had taken up the argument developed by the Cabinet, inviting the view that if there had been a bad faith, it could not be characterised in respect of the financial year in dispute but could only have been characterised in respect of the years in which the entries which had given rise to the credits on the current account had been made, which were now time-barred. Unlike provisions for which the tax and accounting rules require a review at the date of each entry in the balance sheet, even if they are reversed for the same amount from one financial year to the next, the entries at the beginning of the financial year which, since they have not been affected by any movement, will be reversed identically in the closing balance sheet are simply carried forward and do not involve any decision by the taxpayer liable to incur the 40% penalty. As the Court has chosen a different ground to discharge the penalty, this interesting question remains to be judged.

COPYRIGHT - FRENKEL & ASSOCIÉS 2020