Limitation of the Executive Directors’powers in the by-laws: third parties can rely on it
A company’s by-laws can restrict or limit the Executive Directors’powers. It was admitted that these limitations could not be opposed by the company to third parties. Conversely, it was not clarified yet if they could be opposed to the company by third parties (except in some limited fields); this is the position adopted by the Supreme Court in a judgment of 14 June 2018 (N° 16 – 28.672) : a third party is entitled to the benefit of the by-laws and to invoke the excess of powers committed by its Directors, in order to cancel the deed executed in breach of such a statutory clause. In light of this decision, the companies should secure their contracts by revising their by-laws as appropriate.
Late interests are reduced in case of spontaneous correction of a filing mistake
The law said “for a State in the service of a trustworthy society” (“ESSOC law”) dated August 10th 2018 reduces the late interest of 50% in case of spontaneous rectification of a filing mistake before any control.
This amends the existing measure (art. 1727 of the French Tax Code) according to which any tax debt that has not been paid within the legal period gives rise to the payment of late interests which –from January 1st, 2018, equal to 0.20% per month.
Late interests are not considered as penalties and apply regardless of the taxpayer’s good faith. Complementing this system, ESSOC law grants a 50% reduction of late interests to the “bona fide” taxpayer who spontaneously rectifies filing mistake, without any tax control.
Warning: the measure only concerns mistakes or omissions made in good faith in a tax return made filed on time.
The new measure applies to corrected tax returns filed on or after August 11th, 2018.
Reminder: Mandatory upload of withholding tax returns on investment income since September 1st 2018
Following Decree dated August 28th, 2018, tax return no. 2777 – withholding tax return on investment income, and tax return no. 2753 – withholding tax return on income from some bonds, must be uploaded with the corresponding payment in respect of income distributed as of September 1st, 2018 (already applicable for “simplified” tax returns no. 2777-D, since January 1st).
Main withholding taxes concerned are those relating to dividends, interests and social contributions.
The new obligation of online filing applies, in practice, to declarations no. 2777 to be filed before October 15th 2018.
A regulation about transfer pricing documentation is published
Following the Finance Bill for 2018 which actualized the contents of the TP documentation to be drafted by the French companies concerned, this regulation notably establishes that this documentation should be put at the disposal of the tax authorities in an electronic format allowing them to read, analyze and check any information, computation, selection and classification executed in the document.
For any additional information on this subject, contact Pierre VERMESSE or Marie-Hélène GUIDON
The Tax Supreme Court defines the so-called ” leading holding companies”
In a decision dated 13 June 2018, the Supreme Court provides very welcomed comments about the discussed concept of “leading holding company”.
A method based on items of evidence is chosen, the Court giving greater importance to objective criteria and facts in order to characterize the managing and leading role of a given holding company.
One of the most important points about this decision is that the Court allows a company to be considered as a leading holding even if it does not provide services/management to some of its minority subsidiaries.
Settlement after dismissal for gross misconduct: end of the automatic adjustments from the URSSAF
Our law firm originated a court decision of the 2nd civil chamber of the French Supreme Court dated 15 March 2018 (n° 17-10.325, F-P+B). This decision confirms that in case a “clear, precise and non ambiguous” settlement exists, showing clearly the parties’ agreement, the transactional payment is established as having a compensatory nature, with no possible challenge from the URSSAF
For any additional question on this subject, please contact Frédérique GARNIER