Deloitte Société d'Avocats

Draft Finance Tax Act for 2017 : Amendment on the free shares taxation

An amendment to the Draft Finance Tax Act for 2017, presented to the Finance Committee of the French Parliament on October 12, 2016, aims to modify the free shares tax and social regime provided for by the article 135 of the Law n. 2015-990 for growth, business and equal economic opportunity (i.e. “Macron Act”).

The main measures of the amendment

Taxation of the acquisition gain as employment income

The article 80 quaterdecies-I of the French Tax Code is modified as follows: “The gain corresponding to the value, at the acquisition date, of the free shares granted further to the provisions of the Articles L. 225-197-1 to L. 225-197-3 of the French Commercial Code is taxed in the hands of the beneficiary as employment income.”

Therefore, this amendment proposes to tax the acquisition gain as employment income instead of capital gain.

Considering the above, the acquisition gain would not benefit from the taper relief anymore which would be only applicable on the shares sale gain. This new regime would lead to a tax increase of approximatively 20% for the concerned free shares’ grants.

Employer contribution rate of 30%

This amendment proposes to increase the employer contribution’s rate to 30% instead of 20%.

This contribution would be applicable on the basis of:

This choice is made by the employer for the entire fiscal year and concerns all the grants made during this period; the choice is irrevocable for this period.

The exemption from employer contribution is only maintained for small and medium-sized enterprises (SMEs) having not proceeded to dividend payments.

Conclusion

We note that this new regime, if adopted, aims to significantly increase the free shares taxation.

Consequently, we recommend to all the listed or not listed companies, big companies, SMEs, mid-sized companies and start-up to implement free shares scheme on the basis of the current provisions.

We will keep you posted of any further development.