An association can only claim the benefit of the research tax credit on the double condition of being subject to corporate tax and of carrying out an activity of an industrial, commercial, or agricultural nature.
Analysis of case law in this area.
Background
An association whose purpose was the care of people with respiratory insufficiency and medical research, subject to corporate tax, was the subject of a tax audit that ended with a reassessment of its RTC.
As a reminder, industrial, commercial, craft and agricultural undertakings taxed based on their actual profit, whatever their mode of operation, may benefit from the RTC (art. 244 c B, I of the French Tax Code).
The Administration has clarified, however, that the fact of carrying out an activity in the form of an associative structure does not in itself constitute an obstacle to the benefit of the RTC. It considers that professional associations may benefit from the RTC since they carry out an economic activity to be qualifying as undertakings and are subject to corporate tax. They must therefore engage in gainful activities of an industrial, commercial or agricultural nature (BOI-BIC-RICI-10-10-10-10, n°20 of 24 June 2013).
The decision of the Council of State
The Council of State confirms the principle of eligibility for the RTC, all conditions being met elsewhere.
However, it censures the reasoning adopted by the trial judges, who had considered that the association should be regarded as carrying out a gainful and non-disinterested activity, on the ground that it provides, directly or indirectly, services to a commercial company to which it is united by a community of interests and by privileged legal or economic links, without ascertaining whether the association itself carried on an activity of an industrial and commercial or agricultural nature.
A case-by-case assessment of the commercial, industrial or agricultural activity
Commercial companies by form may benefit from the RTC whatever their activity.(BOI-BIC-RICI-10-10-10-10, n°1 resuming Council of State, 7 July 2006, n°270899, Company CADEV) and therefore do not have to establish that they are industrial, commercial or agricultural undertakings.
On the contrary, for an association subject to corporate tax to benefit from the RTC, it will have to be able to demonstrate that it carries out a commercial, industrial or agricultural activity.