A French tax non-resident is not taxable in France on their worldwide income. France may only tax income and capital gains having a “French source”, and only where French domestic law provides for such taxation and where a tax treaty does not remove or restrict France’s right to tax.
For capital gains arising from the sale of securities, the standard mechanism is as follows. Where an individual is a French tax resident, they are in principle taxable on all securities capital gains realised during the year, calculated on the basis of the sale price less the acquisition price, and taxed either according to the progressive scale or at a flat rate, depending on the applicable regime. This is the ordinary regime provided for by Article 150-0 A of the French General Tax Code (Code général des impôts – CGI), which applies to residents.
Where the individual is a non-resident, the logic is different. As a general rule, France does not tax capital gains on the sale of securities realised by a non-resident. France only regains taxing rights in specific cases expressly provided for by law, such as real estate capital gains (CGI, Art. 244 bis A) or capital gains on substantial shareholdings in French companies subject to corporate income tax (CGI, Art. 244 bis B). Even in such cases, a bilateral tax treaty may still deprive France of this right to tax and reserve taxation exclusively to the seller’s State of residence.
It is precisely within this framework that the question of social contributions arises. Let us examine the issue through the example of a non-resident selling shares in a French SAS. The individual controls more than 25% of the company and realises a capital gain that may fall within the scope of Article 244 bis B, even though the company is not predominantly real-estate based. One might then be tempted, almost automatically, to add 17.2% in social contributions, as would be the case for a resident. This raises a very practical question: must this capital gain, already subject to specific taxation in France, also bear CSG, CRDS and the solidarity levy simply because the shares sold are French?
The importance of this question is immediate. On a transaction worth several million euros, adding — or removing — 17.2% in social contributions can represent a six-figure amount. It is also an area in which mistakes are still regularly made in practice, by applying to non-residents rules and habits developed for residents. It is therefore essential to distinguish between income tax, on the one hand, and social contributions, on the other, and to determine whether the latter even have a legal basis in this type of situation.
I. First Step: Income Tax Under French Domestic Law
Under French domestic law, the basic principle is relatively favourable to non-residents. Article 244 bis C of the CGI provides that the ordinary securities capital gains regime applicable to individuals tax domiciled in France within the meaning of Article 4 B does not apply to non-residents.
However, this principle is subject to an important exception. Article 244 bis B provides, by way of derogation, for a specific withholding tax where the seller has held, directly or indirectly, together with their spouse, ascendants and descendants, more than 25% of the rights to the profits of a company subject to corporate income tax and having its registered office in France, at any time during the five years preceding the sale.
In such a case, the gains referred to in Article 150-0 A are subject, for non-resident individuals, to flat-rate taxation of 12.8%.
Applied to the situation of a shareholder holding more than 25% of the shares in a French SAS, this threshold is clearly exceeded. Under French domestic law alone, the capital gain therefore falls within the scope of Article 244 bis B and is taxable in France at a rate of 12.8%, subject of course to the possible application of a bilateral tax treaty, which we will address below.
At this stage, an initial conclusion can be drawn. Under domestic law, France recognises its right to tax the capital gain arising from the sale of shares in the SAS by the non-resident through the withholding mechanism provided for in Article 244 bis B. This is an essential prerequisite before even considering social contributions, but it is not sufficient to make those contributions applicable.
II. Second Step: Social Contributions on Securities Capital Gains Realised by Non-Residents
A. The General Principle
This is the key issue. The fact that the capital gain is taxable in France under Article 244 bis B does not, in itself, mean that it is subject to CSG, CRDS or the solidarity levy.
Those contributions must still have a statutory basis that expressly or implicitly applies to non-residents for this type of income.
The legal basis for social contributions on income from assets is found in the French Social Security Code (Code de la sécurité sociale – CSS). Article L. 136-6, which establishes CSG on income from assets, expressly applies to individuals who are “tax domiciled in France within the meaning of Article 4 B of the General Tax Code”.
Its scope includes, among other things, capital gains and gains subject to income tax. However, it does not contain any independent provision extending its application to non-residents in respect of securities capital gains.
Article L. 136-7 of the CSS, relating to CSG on investment income, applies the same entry criterion, referring to persons “tax domiciled in France” across the relevant categories of income, whether distributed income, interest or certain disposal gains.
Again, there is no general reference to non-residents in relation to capital gains on securities.
This absence is not remedied by the 7.5% solidarity levy provided for under Article 235 ter of the CGI. This provision does not create an independent scope of liability, but expressly refers back to the rules governing the tax base, assessment and collection of CSG under the Social Security Code.
In other words, the solidarity levy follows the same rules as CSG regarding taxable persons and the income concerned.
If there is no CSG liability, there is likewise no solidarity levy.
Accordingly, on the one hand, the provisions governing CSG on income from assets (CSS, Art. L. 136-6) and investment income (CSS, Art. L. 136-7) identify persons tax domiciled in France as liable taxpayers.
On the other hand, the solidarity levy under Article 235 ter of the CGI is entirely based on those rules.
None of these provisions provides, even by way of exception, for non-residents to be subject to social contributions on securities capital gains falling within Article 244 bis B of the CGI.
B. A Highly Specific Exception: Real Estate and Similar Capital Gains Realised by Non-Residents
The position is radically different for French-source real estate capital gains and disposals of shares in predominantly real-estate companies.
Where the legislature intended non-residents to be subject to social contributions on such gains, it expressly provided for it.
Article L. 136-7, I bis of the CSS provides that certain capital gains subject to the withholding tax referred to in Article 244 bis A of the CGI are also subject to CSG.
Article 244 bis A specifically applies to real estate capital gains realised by individuals not domiciled in France or legal entities whose registered office is located outside France, including disposals of shares in predominantly real-estate companies.
The interaction between these provisions demonstrates that an explicit bridge was created between the tax mechanism applicable to non-residents — in this case Article 244 bis A of the CGI — and CSG under Article L. 136-7, I bis of the CSS.
No equivalent bridge exists for securities capital gains governed by Article 244 bis B.
Consequently, the sale by a non-resident of shares in a French SAS that is not predominantly real-estate based is not subject to CSG, CRDS or the solidarity levy, even where the seller holds more than 25% of the share capital and therefore falls fully within the scope of Article 244 bis B of the CGI.
This conclusion applies irrespective of the seller’s country of residence and regardless of whether a tax treaty exists.
III. De Ruyter, Jahin and the 2019 Reform: A European Framework Confirming the Absence of Social Contributions Under Article 244 bis B
Whenever social contributions applicable to non-residents are discussed, attention naturally turns to the judgment of the Court of Justice of the European Union in De Ruyter (26 February 2015, Case C-623/13) and the extensive litigation that followed.
It is therefore useful to examine how this case law, followed by the amendments introduced through the Social Security Financing Act for 2019, does not undermine — and, for individuals affiliated with a European social security scheme, even tends to reinforce — the reasoning set out above regarding capital gains governed by Article 244 bis B.
In De Ruyter, the CJEU held that levies on income from assets contributing to the financing of compulsory social security schemes had a “direct and sufficiently relevant link” with those schemes and therefore fell within the scope of Regulation No. 1408/71, now replaced by Regulation No. 883/2004.
The Court consequently held that a taxpayer affiliated with the social security system of another Member State could not be subject to those contributions in France, by virtue of the principle that only one social security legislation may apply.
The French Conseil d’État acknowledged this interpretation and allowed taxpayers to claim refunds of social contributions improperly levied on income from assets where the individuals concerned were affiliated with the social security system of another Member State (Conseil d’État, 27 July 2015, No. 334551).
To bring domestic law into compliance, the Social Security Financing Act for 2019 reorganised the allocation of social contributions.
Persons affiliated with the social security system of a Member State of the European Union, the European Economic Area or Switzerland, who are not covered by the French social security system, were exempted from CSG and CRDS on income from assets and certain investment income.
However, they remain subject to the 7.5% solidarity levy, provided for under Article 235 ter of the CGI, because this levy is allocated to the State’s general budget rather than to the financing of the social security system.
In relation to real estate capital gains realised by non-residents, the Conseil d’État held that the 7.5% solidarity levy did not fall within the scope of Regulation No. 883/2004 and could therefore continue to apply to individuals affiliated with the social security system of another Member State (Conseil d’État, 16 April 2019, No. 423586).
Although that decision concerned real estate, it confirms the broader approach adopted by the legislature following De Ruyter.
As regards residents of third countries outside the EU, EEA and Switzerland, the CJEU held in Jahin on 18 January 2018 (C-45/17) that France could maintain social contributions at the overall rate of 17.2% on certain income from assets, despite the difference in treatment compared with taxpayers covered by another Member State’s social security system.
However, this entire framework only concerns income from assets and investment income that already falls, under French domestic law, within the scope of CSG and CRDS for the persons concerned.
Fundamentally, it addresses compatibility with European Union law, rather than the domestic-law scope of the contributions themselves.
In the case of securities capital gains falling within Article 244 bis B of the CGI and realised by non-residents, the issue arises at an earlier stage.
The underlying provisions — Articles L. 136-6 and L. 136-7 of the CSS — do not bring such persons within the scope of CSG or, consequently, the solidarity levy.
In the absence of a domestic legal basis, the distinction between a 7.5% and 17.2% charge becomes purely theoretical: there is simply no social contribution to assess.
IV. The Effect of Tax Treaties: An Additional Layer, but Leading to the Same Conclusion
Finally, bilateral tax treaties entered into by France must also be considered.
These treaties take precedence over domestic law when allocating taxing rights between States.
For illustrative purposes, we will consider the France–Mauritius tax treaty of 11 December 1980 and its accompanying protocol.
As a general rule, Article 13(4) of the treaty provides that gains arising from the disposal of movable property, including shares in companies that are not predominantly real-estate based, are taxable in the seller’s State of residence.
In other words, if the seller is a Mauritian resident, the basic rule would be that only Mauritius may tax the capital gain.
However, the protocol annexed to the treaty modifies this principle in several circumstances.
First, it provides that where shares or interests effectively represent rights in immovable property situated in one State, and are treated as immovable property under the law of that State, income and gains may be taxed in that State.
This corresponds to the treatment of predominantly real-estate companies.
More importantly for the present issue, paragraph 6(b) of the protocol provides that, notwithstanding the general rule in Article 13, gains arising from the disposal of shares or interests forming part of a “substantial participation” in a company resident in one State may be taxed in that State in accordance with its domestic legislation.
The protocol defines a substantial participation as a direct or indirect holding by the seller, alone or together with related persons, of securities giving entitlement to at least 25% of the company’s profits.
Applied to a Mauritian resident selling 100% of the shares in a French SAS that is not predominantly real-estate based, this means very concretely that the treaty does not remove France’s right to tax the capital gain.
On the contrary, it expressly authorises France to tax the gain where the participation sold exceeds the threshold of 25% of the company’s profits.
In such circumstances, Article 244 bis B of the CGI may therefore apply to the capital gain realised by the Mauritian resident.
However, the treaty and its protocol are silent on CSG, CRDS and the solidarity levy.
They merely allocate taxing rights regarding income tax, or the flat-rate withholding tax that effectively replaces it.
They do not create any new legal basis for the application of social contributions.
To determine whether those contributions apply, it is necessary to return to the French domestic social security provisions.
As explained above, Articles L. 136-6 and L. 136-7 of the Social Security Code refer to persons tax domiciled in France and do not extend social contributions to non-residents in respect of securities capital gains falling within Article 244 bis B.
The resulting position is therefore as follows: a Mauritian resident disposing of a substantial participation in a French SAS may be taxed in France on the capital gain under Article 244 bis B, because the treaty and its protocol preserve France’s taxing right. However, that capital gain is not subject to French social contributions, because no domestic statutory provision makes such contributions applicable to non-residents in this particular situation.
Ultimately, for non-resident company directors and investors, the issue is highly practical.
It is essential to distinguish clearly between real estate capital gains, which may remain heavily subject to social contributions even for non-residents, and securities capital gains falling within Article 244 bis B, which are not subject to CSG, CRDS or the solidarity levy where the seller is not tax domiciled in France.
Confusing these two categories can lead to unjustified additional costs, sometimes in the form of withholding taxes applied out of excessive caution, which must then be challenged.
Finally, another mechanism may overlap with this analysis: the Exit Tax provided for under Article 167 bis of the CGI.
A taxpayer leaving France while holding substantial shareholdings may become subject, at the time of departure, to a latent tax charge on unrealised capital gains.
A subsequent disposal of the shares while abroad may then reactivate or increase that tax liability, independently of the mechanism under Article 244 bis B and the question of social contributions.
Before completing a disposal following departure from France, it is therefore advisable to examine the situation from an Exit Tax perspective as well.
For a clear overview of this mechanism, please refer to the following article:
https://citizenavocats.com/exit-tax-en-france-un-guide-pour-les-expatries-francais/
Brenda FASSIER, Trainee Lawyer
EDA Paris
Maître Théo J. LE FLOHIC, Partner Lawyer & Director
Bordeaux Bar
