Share of costs and expenses on dividends from non-European subsidiaries: a priority preliminary ruling on the issue of constitutionality

The State Council issued a ruling on January 24th 2018 (N°415726, Lige Sciences Finances Holding France) transferring a priority preliminary ruling on the issue of constitutionality to the Constitutional Council pertaining to the application of a 5% share of costs and expenses (QPFC) to dividends received from non-European subsidiaries.

The ruling pertains to the timeframe prior to financial years starting from January 1st 2016 during which:

• the 5% share of costs and expenses was applicable to all dividends covered by parent company tax systems, as stated by Art. 216 of the General Tax Code;
• the EUJC ruled that applying the 5% share of costs and expenses to dividends from European subsidiaries was contrary to freedom of establishment if said subsidiaries were subject to the tax integration system if implemented in France (EUJC, September 2 2015, C-386/14, Steria SCA Group). French parent companies could therefore benefit from 5% share neutralisation pertaining to European subsidiary dividends based on this ruling.

According to the State Council, the issue of share of costs and expenses compatibility when it comes to dividends received from subsidiaries established outside of the European Union is a serious one, especially considering that if they were established in France, they would be subject to the tax integration system that upholds equity before the law and before the government as stated in Articles 6 and 13 of the Declaration of Human and Citizen Rights.

The Constitutional Court will issue a ruling within the next three months (April 25th at the latest).

We therefore recommend filing complaints pertaining to dividend-related shares of costs and expenses within the correct timeframe as soon as possible to preserve your rights in the event of a time limit set by the Constitutional Court for its ruling.

The Litigations Team