(EXPERT SEEMS) The taxation that applies to transfers of company titles, such as for example shares in a real estate company (SCI), is not the same when you are usufructuary or bare owner. Decryption by our expert Philippe Van Steenlandt, doctor of law and notary.
The transfer of a usufruct relating to the securities of the company has tax consequences for both the transferor and the transferee.
For the transferor, the capital gain acquired on the securities of the corporation is taxed according to a regime that varies according to the status of the transferor, natural or legal person, professional or not, and the duration of the usufruct thus constituted, for life or temporary.
On the part of the transferee, usufruct transfers were subject to the regime applicable to the transfer of the securities concerned: registration rights were taxed at a rate of 0.1% for shares, 3% for l other companies, except for companies mainly real estate taxed at the rate of 5%. From the end of 2022, usufruct transfers of company values ​​are now subject to a fixed fee of 125 euros.
I. Only the bare owner has partner status
The Court of Cassation has confirmed, again recently (Cass. com., 1 December 2021, n° 20-15164; Cass. civ., 3 ch., 16 February 2022, n° 20-15164), that in case of dismemberment of the corporate titles, the usufructuary does not have the status of partner. In the eyes of the judge, only the naked owner can claim this partner status. In the various asset management and transmission strategies, especially real estate, it is essential to take into account this constant jurisprudence.
To the extent that the usufructuary is not recognized as an association, the judge continued his reasoning to the end, indicating that the transfer of the usufruct of social rights, which does not involve a transfer of property of social rights, should not be submitted. to the proportional registration rights applicable to transfers of social rights, but at the simple fixed rate of 125 euros for the unnamed acts provided for in article 680 of the CGI (Cass. com., November 30, 2022, n. 20-18884; Court of Cassation, January 4, 2023, n. 20-10112.
In a recent update (BOFiP-ENR-DMTOM-40-10-20 §140, April 24, 2024), the tax administration has incorporated this important jurisprudence.
It is therefore all the usufruct transfers of the corporation’s securities that will benefit from this reduced taxation. Whether it is, for example, usufruct transfers of SCI (real estate company) securities for the benefit of an operating company, in development or restructuring plans for company buildings, or exchanges of cross usufructs of SCI shares between cohabitants or partners bound by a solidarity pact.
However, one question remains unanswered. If a SCI was created by the contribution of real estate, does the fixed law of unnamed acts remain applicable?
II. The transfer of the usufruct of social rights after a contribution in kind
In principle, the transfers of shares are considered, from the fiscal point of view, as having for object the goods in kind represented by the transferable securities (CGI, art. 727), when they are carried out within a period of three years from 2015. the contribution made to society.
So, for example, if the property is contributed to a SCI, and the values ​​are transferred within three years of this contribution, the registration fees are no longer taxed at the rate of 5%, but will be taxed at the rate of 5 ,80% applicable to the sale of real estate.
The question therefore arises as to whether the transfer of the usufruct of the company’s shares carried out within three years from a contribution in kind to the company remains subject to the fixed importance of 125 euros.
The judge has not yet made a decision on this question.
Regarding the transfer of the bare ownership of social rights within three years from a real estate contribution, the jurisprudence has instead already positioned itself in favor of maintaining the regime of article 727 of the CGI (Cass. com. , 9 October). , 1990, n° 89-13996). In a Pavlovian reflex, we may be tempted to transpose this decision to the transfer of the usufruct of social rights. It would nevertheless be to neglect the fact that, according to the judge, only the bare owner has the status of associate, to the exclusion of the usufructuary. And it is this absence of associated status that justifies the application of the fixed law of unnamed acts. And it is not because the transfer of usufruct is carried out within three years of a contribution in kind that the transferee acquires the status of partner. Thus, subject to the abuse of the tax law, the transfer of the usufruct of social rights in three years of a contribution in kind must, in our opinion, be subject to the fixed tax of 125 euros.
As a precautionary measure, however, and pending the desired jurisprudential confirmation, it is preferable to request a tax ruling, or to pay the proportional registration fees and then proceed with a contentious claim requesting relief from the taxes paid .