Transfer of shares
In this case :
On 18 April 2014, Mrs Y, born in 1934 and resident in China, sold 7,715 shares in the company to her granddaughter, Mrs X, born in 1993, for €771,500. simplified joint stock company (SAS) A, with its registered office in France.
This company specialises in the hotel sector in Paris and the Paris region.
Mrs X's parents therefore hold 70 % of her capital.
This transfer therefore gave rise to the filing of a declaration of transfer of corporate rights, also dated 18 April 2014.
This deed was registered on 20 May 2014. This was done at the company tax office of the transferee's domicile.
On 28 September 2017, the tax authorities noted that the sale price had not been paid and considered that Mrs Y was acting with a liberal intention towards her granddaughter, and sent Mrs X a proposed adjustment.
It has implemented theabuse of tax law on the basis of art. L. 64 of the LPF and reclassified the transfer of shares as a gift. It therefore made the gift subject to the payment of transfer duties.
Discussion (Transfer of shares) :
Thus, after hearing both the taxpayer's counsel and the representative of the administration, the Committee notes :
-. that it is not disputed that the sale price for the 7715 shares in SAS A had still not been paid
-by the transferee on the date of the administration's proposed adjustment.
It also found that there was no evidence that the assignor intended to obtain such a payment.
The Committee notes that in January 2015 Ms Y made a cash payment to Ms X into the current account held by Ms X in SAS A and in December 2015 made a manual gift, without these sums being used by the transferee to pay, even partially, the sale price of these shares.
The Committee also notes that :
-. Mrs Y, then aged 80, performed an identical operation on Mrs X's brother at the same time,
-In so doing, he expressed his desire to pass on his estate in equal shares to his two grandchildren.
Lastly, the Committee notes that Ms X, who co-signed the declaration of transfer of sharesThe owner of the property, the seller, acquiesced in the transfer of the property to him without showing any willingness to pay the agreed price.
The Committee therefore considers that Mrs Y's liberal intent towards Mrs X is sufficiently established. And that it follows from the facts of the case that the transfer of 7,715 shares in SAS A on 18 April 2014 disguises in the donation of these shares.
Solution chosen:
Consequently, the Committee is of the opinion that the Administration was justified in implementing the abuse of tax law procedure provided for in Art. L. 64 of the LPF (case no. 2018-18).
Lastly, the Committee considers that Mrs X must be regarded as the main beneficiary of the simulation. This constitutes an abuse of rights within the meaning of Article 1729(b) of the CGI.
It is therefore of the opinion that the administration is justified in applying the increase of 80 % provided for by these provisions.
The Administration has taken note of the Committee's opinion.
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