The European Commission has, knowingly, introduced in 2007 a case against the only Portugal. Indeed, the case of France is very different.
If there is unequal treatment in terms of real estate gains, it is in France, to the detriment of residents :
- n’acquittent non-resident taxpayers or the CGS or the CRDS. They benefit from a tax reduction of 39% (19% sample against 31.3% for residents);
- there is an exemption from capital gains on second homes restricted to non-residents;
- Finally, the wealth tax, progressive, also weighs more heavily on real estate assets of residents.
The requirement to appoint a tax representative is targeted :
- persons who sell a property assigned to their activity are never held in France to designate a tax representative. As a result, the tax representative is in no way an obstacle to the single market. It’s a major difference with the case of Portugal;
- all sales of less than € 150 000 are exempt from tax representative;
- stress is minimal and proportionate, cost, often zero, is always less than 1% (instead of about 3% to 5% as has been written) and the professionals involved know the day if necessary.
No restrictions preclude investment in France : Non-residents invest heavily in real estate in France to the point that some cities have become inaccessible to the inhabitants (Menton, Chamonix, etc.).. Therefore, one can argue that restrictions would hinder investment capital non-residents.
Differential treatment is allowed : Article 65 of the Treaty expressly allows the consideration of the difference in situation between residents and nonresidents. And who could challenge, in concreto, that non-residents are in a situation of less subjection to the French state? The result is both a lower propensity to spontaneous payment of taxes and more difficult to cross, control and recovery.
The risk of tax avoidance is shown : After stopping Sté Kingroup (EC April 4, 1997 No. 144211), the SCI held by non-residents were exempted from some time tax representative. The tax was then evaporated in virtually 100% of cases. The risk of tax avoidance is not here a “presumption” but a reality demonstrated. It is therefore justified for non-residents pay the costs, modest, a necessary mechanism. Otherwise, it is the resident taxpayers, already heavily taxed, which would bear the cost of collecting the taxes owed by non-residents.
In its recent jurisprudence, the ECJ takes more into account the necessity of paying taxes, part of the European social model.
In the presence of generally favorable taxation arrangements for non-residents, accompanied by an obligation of tax representation targeted and justified its conclusion, if it were to be seized, should be the same as that of the European Commission.