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Working with the French – feedback from the field
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Feature-rich integration. User documentation, support. Offers online training and full support staff to take calls, personally answer emails. Optimized steel design. Intuitive Base Plate Wizard. Easier concrete design. Cobelpin was represented as director by none other than Philippe Brilot, already a director of SGI in his own name. In the view of the authorities, the arrangement constituted a loss-making transaction, undertaken solely with the aim of avoiding tax. Nor does the referring court consider the remuneration to constitute business expenses deductible under Article 49 of the CIR By order of 19 June , that court made a reference to the Court of Justice for a preliminary ruling on the following questions:.
Does Article 56 EC, in conjunction with Article 48 EC and, if appropriate, Article 12 EC, preclude legislation of a Member State which, like that at issue, gives rise to the taxation of a company resident in Belgium in respect of an unusual or gratuitous advantage which it has granted to a company established in another Member State with which the Belgian company has, directly or indirectly, a relationship of interdependence, whereas, in identical circumstances, the company resident in Belgium cannot be taxed in respect of an unusual or gratuitous advantage where that advantage is granted to another company established in Belgium with which the Belgian company has, directly or indirectly, a relationship of interdependence?
By its two questions, the referring court wishes, in essence, to ascertain whether a national provision such as Article 26 of the CIR 92 is compatible with the freedom of establishment provided for by Article 43 EC and the free movement of capital guaranteed by Article 56 EC and, if appropriate, in conjunction with Article 12 EC. However, before proceeding to consider those questions, I wish to make a brief observation on the national provisions applicable in the main proceedings.
However, it is evident from the order for reference that the tax authorities clearly did not apply Article 26 of the CIR 92 to the remuneration paid by SGI to Cobelpin for its services as director. Instead, they refused the deduction of those payments as constituting operating expenditure on the basis of Article 49 of the CIR The Belgian Government indicates that in Belgian case-law and academic literature the relationship between the two provisions is contested.
However, in response to a question of the Court, it refers to a recent judgment of the Belgian Constitutional Court. According to that judgment, both provisions apply independently of each other. As an initial matter, it must be ascertained whether, in the present case, both the freedom of establishment and the free movement of capital are applicable and, if so, which of the two should be the focus of the examination.
As Article 43 EC and Article 56 EC constitute specific expressions of the general prohibition of discrimination on grounds of nationality, additional recourse to Article 12 EC is, however, unnecessary. According to established case-law, in order to ascertain whether national legislation falls within the scope of one or another of the freedoms of movement, primary consideration must be given to the purpose of the legislation concerned. Subparagraph 1 of the second paragraph of Article 26 of the CIR 92 applies to advantages which one company confers on another company with which it has, directly or indirectly, a relationship of interdependence.
On the other hand, according to those indications, a relationship of interdependence may exist, for example, because of financial relations or because of a dependence as regards particular raw materials or technology. In those circumstances, it must be assumed that the national legislation at issue covers, essentially, situations falling within the scope of the freedom of establishment.
An undertaking is likely, in fact, to grant unusual or gratuitous advantages to another undertaking when the undertaking itself or its shareholders indirectly profit from that transaction, for example, because this reduces the overall tax burden on the group of companies. However, the possibility cannot be excluded that other fundamental freedoms are also relevant.
Thus, the free movement of goods or capital or the freedom to provide services might be affected if an advantage — not constituting specific consideration in the framework of a particular transaction — is granted on grounds of a particular interest in certain supplies of goods, financial transactions or other services. Therefore, as Article 26 of the CIR 92 does not necessarily govern simply cases in which a taxpayer exercises its right to freedom of establishment, I shall go on to examine how the facts of the main proceedings may be specifically categorised.
In addition, Cobelpin is a director of SGI and in that capacity also has a decisive influence on the management of that undertaking. In the present case, it is therefore unnecessary to determine whether, in a situation such as that at issue here, the free movement of capital or, possibly, other fundamental freedoms apply, in addition to the freedom of establishment. In purely intra-Community situations, however, the relationship between the freedom of establishment and the free movement of capital need not ultimately be resolved, as the conditions governing both those fundamental freedoms are, for the most part, identical.
There is no third-country dimension to the present case. Freedom of establishment entails, for companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the European Community, the right to exercise their activity in other Member States through a subsidiary, a branch or an agency. Even though, according to their wording, the Treaty provisions concerning freedom of establishment are directed to ensuring that foreign nationals and companies are treated in the host Member State in the same way as nationals of that State, they also prohibit the Member State of origin from hindering the establishment in another Member State of one of its nationals or of a company incorporated under its legislation or from making such a step less attractive.
Under subparagraph 1 of the second paragraph of Article 26 of the CIR 92, an unusual or gratuitous advantage is added back to the profits of the undertaking which granted the advantage. However, it is not added back if the advantage is taken into account in determining the taxable income of the recipient. The adding-back mechanism is not applied, however, only where the advantage is granted to a domestic company.
Therefore, that provision lays down different rules depending on whether the company to which a resident company — with which the former has a relationship of interdependence — grants an unusual or gratuitous advantage is also a resident company or is established in another Member State. However, the Belgian and German Governments argue that, when account is taken of the wider context, the legislation in question does not result in less favourable treatment in cross-border situations.
They concede that adding-back of an unusual or gratuitous advantage does not operate in domestic situations, provided that the advantage is taken into account in determining the taxable income of the recipient. However, they point out that, under Articles 79 and of the CIR 92, the recipient of the advantage cannot set off such income against its own losses. Thus, even in domestic situations such profits are, in the same period, subject to tax, but liability for such tax lies with the company receiving the advantage, not the company granting it.
However, by that argument the Belgian and German Governments have not completely rebutted the contention that the grant of an unusual or gratuitous advantage to a non-resident company is treated less favourably under the legislation than is the case with corresponding transactions between resident companies.
In that context, it must be observed that the Governments in question base their observations on a global view of the group of companies and presume that it is irrelevant to which company within a group particular income is attributed, so long as the transfer of the income cannot result in a more advantageous utilisation of losses within the group. From the perspective of company X and its shareholders, it may indeed make a difference whether an unusual advantage granted by X to another company is added-back to its profits or added to the profits of the beneficiary company.
However, even if it is assumed, in the present case, that it is appropriate to view the group of companies as a whole for the purposes of evaluating the tax provisions, in certain cross-border situations disadvantages arise all the same. As SGI points out and the Belgian Government itself concedes, an adjustment of the profits in the State in which the company which granted an unusual advantage is established can result in double taxation of the same income.
For example, payments made by SGI to Cobelpin in respect of its activities as company director were attributed to the profits of SGI or not deducted from its income. At the same time, those same payments formed part of the tax base of Cobelpin and were subject to tax in Luxembourg. The interest was added to the profits of SGI. However, as Recydem did not, in fact, pay any interest, the French tax authorities would be reluctant recognise such interest as operating expenses.
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Admittedly, the Member States are correct to point out that double taxation can be eliminated through the application of the Arbitration Convention. On the basis of the Convention, Cobelpin or Recydem could request a reassessment of their income to take account of the Belgian tax treatment of the advantages granted by SGI. Moreover, the taxpayer must bear the financial burden of the double taxation for the duration of the procedure.
Thus, a procedure aimed at resolution by mutual agreement and, if necessary, a subsequent arbitration procedure may extend over several years, when full use is made of the periods laid down in the Convention for each procedural step.
By contrast, in the case of similar domestic transactions, the risk of double taxation is greatly reduced because the advantage is not added back when taken into consideration for tax purposes in the hands of the recipient. Naturally, in that case, it would have to accept a relocation of the tax base to the State in which the beneficiary company is established.
As a result of an examination of the potential justification, it will become clear whether, in fact, that is required under Community law. As an interim conclusion, it must be stated that, as a result of the different treatment it affords to domestic and cross-border transactions, national legislation such as Article 26 of the CIR 92 is liable to hinder or make less attractive the formation of establishments in another Member State.
Consequently, the legislation restricts the exercise of the right to freedom of establishment guaranteed in Article 43 EC. A restriction on the freedom of establishment is permissible only if it is justified by overriding reasons in the public interest. It is further necessary, in such a case, that it should be appropriate to ensuring the attainment of the objective thus pursued and must not go beyond what is necessary to attain it.
The governments submitting observations and the Commission share the view that a provision such as Article 26 of the CIR 92 aims to ensure a balanced allocation of the power to tax between Member States. At the same time, those parties refer to the need to combat tax avoidance through the prevention of abusive practices as justification. In that regard, the German Government places emphasis on the first of those grounds of justification, submitting that this must be considered separately from justification based on the need to combat abusive practices.
In any event, so it argues, the scope of any justification based on the safeguarding of a balanced allocation of the power to tax must not be limited by too narrow a definition of proportionality, such as that advocated by the Court in relation to the combat of abuse. In that regard, it originally cited as related elements the avoidance of the danger that losses would be used twice and combating tax avoidance. In other cases, the Court laid particular emphasis on the justification of preventing tax avoidance. From that perspective, national measures restricting freedom of establishment may be justified where they specifically target wholly artificial arrangements designed to circumvent the legislation of the Member State concerned.
Such abusive arrangements therefore constitute simply a particular form of interference in the allocation of the power to tax between Member States. If artificial arrangements are adopted in order to remove income from the scope of taxation in one Member State and subject it to taxation in another State, that is quite simply interference in the balanced allocation of the power to tax.
That does not imply, however, that the justification of a balanced allocation of the power to tax may be invoked only when the conditions for invoking the justification of combating abusive practices also are satisfied. Namely, in principle, there is a presumption that a transaction is effected in the legitimate exercise of the freedom of establishment.
The rule laid down in Article 26 of the CIR 92 requires an assessment to be made of specific transactions between companies in a relationship of interdependence. It is appropriate, therefore, in assessing justification, to begin with an examination of whether the legislation is intended to prevent artificial arrangements adopted for tax avoidance purposes.
It must then be considered whether the safeguarding of the allocation of the power to tax is in fact the underlying motive. As the need to combat abusive practices in the form of artificial arrangements aimed at tax avoidance constitutes — as I have indicated — a sub-category of the justification of safeguarding a balanced allocation of the power to tax, different standards may not be applied in determining the proportionality of each ground of justification. National restrictions which cover not only abusive arrangements but also regular transactions are disproportionate because they go beyond what is necessary to attain the objective pursued.
If companies established in different Member States engage in transactions under normal economic conditions, the allocation of the power to tax is unaffected. Where, however, national legislation hinders the conclusion of such transactions, it, too, is disproportionate. First, it is necessary to determine whether Article 26 of the CIR 92 is appropriate for the purpose of attaining the objectives pursued. In order to differentiate artificial arrangements undermining the allocation of the power to tax from normal business transactions, Article 26 of the CIR 92 establishes as distinguishing criteria, first, a relationship of interdependence between the companies concerned and, second, the unusual or gratuitous nature of the advantage conferred.
I thoroughly enjoyed reading your insights. And now, as an entrepreneur, I find the French reaction even more surprising when one comes from the outside of the organization with a new idea. Very disheartening and sad to say the least when compared to places like even Turkey who are ready to try something after a one hour meeting. Once somebody explained Descartes to me yeah, as an American I had to first find out who he was! The question is, when will we in France change the education system so that future leaders are more open minded, risk takers, and positive? More than I had planned to write, but really appreciated your post.
Michael — Thanks for your kind comment. Yes, you made my day with so positive feedback. I would even add that even ambition is considered a taboo as it is instantly associated to greed…. This article is published to give to foreigners some cultural keys in order to understand better their French partners. I shared it with my own Linkedin group called Gestion des risques interculturels more than members.
English to French translators and interpreters » Specific fields
Ironic considering what this webpage is about. Thank you for this interesting information. This article offers some helpful insights. Thank you.
Nom obligatoire. Site Internet. Gestion des Risques Interculturels.
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Suivre les nouveaux articles. Imprimer cet article Working with the French — feedback from the field lundi 3 mars I wanted to share these two stories just to tell you that when we have to work with foreigners, we have to think about our cultural strengths, and also our cultural weaknesses.
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I should ask myself what are my cultural strength and weaknesses, when I have to work with Indians, with Chinese, with Koreans, with Americans, and so on. So this is the second lesson from these stories. You, as foreigners, as Indian, Chinese, Dutch and so on, you should ask yourselves what are your cultural strengths, and also your cultural weaknesses when you work with the French. Understanding the French mentality When you work with the French, you need to understand the French mentality.
Need of information about lectures and conferences? Please use the contact form. Michel Quazza. Samy Khawla. Joseph Campo. Votre adresse email: powered by TinyLetter. Petit tour du monde des g Il fait partie d' Confirmation du diagnostic Wikileaks a permis de lever le voile s La communication indirect Lors de mes formations en management interculturel, la question de la c
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