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France – Penalties Calculated on Annual Tax Liability, Not Balance of Tax Due

GMS Flash Alert 2024-022 | January 24, 2024

France’s State Council (Conseil d’Etat)1, the highest administrative court in France, recently issued a particularly severe ruling in the case of a taxpayer who had failed to file an annual income tax return. The State Council was asked whether, in the absence of a tax return, penalties should be based on the tax shown on the assessment before considering amounts already paid (advance payments or withholdings), or based on the balance owed by the taxpayer after deducting such amounts. The State Council held that penalties are based on the amount of tax mentioned on the assessment, without deducting any advance payments or withholdings.

WHY THIS MATTERS

The State Council’s ruling serves as a stark reminder to assignees and mobility professionals that the penalties for failing to file an individual tax return, where required, can be very serious. That is the case, even where the balance due after taking into account advance payments and taxes withheld is negligible. Employers should clearly communicate responsibilities and timelines to their employees with respect to timely (and accurate) filing of returns, particularly their tax-equalised employees.

Late-Filing Penalties

A taxpayer who submits a return late or fails to file a return is subject to penalties. The penalty is equal to 10 percent of the amount of tax due where the taxpayer files a return late in the absence of a formal notice from the French tax administration, or within 30 days of receiving a formal notice. However, the penalty can be increased to:

– 40 percent if, a taxpayer has failed to submit a return within 30 days of a formal notice.

– 80 percent in the case of discovery of a hidden/undeclared activity.

Court Opinion

In view of the deterrent and onerous nature of these penalties, the State Council ruled that the penalties to be levied on taxpayers who fail to meet their income tax reporting obligations, must be based on the amount of tax due as calculated on the assessment, without deducting any advance payments or withholdings already made.


KPMG INSIGHTS

The chances of further litigation before the administrative courts in this case are nil. A possible recourse would be based on the European Convention on Human Rights, which would take years. The ruling is about late-filing penalties, not late-interest penalties, which may also be due: it is accepted that interest is based on the balance of tax due.

New assignees should be made aware of the risks of not filing an income tax return and neglecting their administrative duties.

Employers and employees concerned about their compliance obligations in a cross-border situation, particularly in circumstances when information required for the returns could be made available late, should contact their qualified tax professional or a member of the Global Mobility Services team with KPMG in France (see the Contacts section).

Contacts

Alain Loehr

Partner

KPMG in France

Ann Atchade

Partner

KPMG in France

Additional Resources

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Footnotes

1 Conseil d'Etat - 4 January 2023 N° 488915 (JORF n°0008 du 11 janvier 2024 at: https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000048911286 ).

Disclaimer

The information contained in this newsletter was submitted by the KPMG International member firm in France.

GMS Flash Alert is a Global Mobility Services publication of the KPMG LLP Washington National Tax practice. The KPMG name and logo are trademarks used under license by the independent member firms of the KPMG global organization. KPMG International Limited is a private English company limited by guarantee and does not provide services to clients. No member firm has any authority to obligate or bind KPMG International or any other member firm vis-à-vis third parties, nor does KPMG International have any such authority to obligate or bind any member firm. The information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation.

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