Supreme Court decisions of June 27, 2016
French companies should take precautionary action now in order to claim the French corporate income tax surcharge of 3% paid in 2014, 2015 and 2016.
Following the transmission of constitutional referrals to the Supreme Court based on the conformity of the 3% tax provided in the article 235 ter ZCA of the French Tax Code to the constitutional principles requiring the ability to pay to be taken into account under articles 6 and 13 of the Declaration of the Rights of Man and the Citizen, the Supreme Court, has just decided, by 4 decisions (n°398585, 399024, 399506 and 399757), to refer:
- Two prejudicial questions to The EU Court of Justice on the non-conformity of the 3% tax with the articles 4 or 5 of the Parent/Subsidiary Directive 2011/96/UE
- A constitutional question to The French Constitutional Court related to the inequality of treatment between corporations regarding the exemption of the 3% tax provided only for companies members of a tax consoli-dated group.
The French Constitutional Court has now 3 months to render its decision.
In the meantime, in order to protect against such a limiting effect, we recommend:
- Urgently to file claims to the tax authorities for the 3% tax paid in 2014, 2015 and 2016
- Urgently to submit claims before the relevant lower Administrative Court for those clients who have already filed claims to the tax authorities and have not received an express rejection within a six-month time limit following the receipt of the claim by the tax authorities.