In practice until the revision of article a52l

Suppression of abuse of right procedure allows the tax administration to question a legal editing if it can demonstrate that it has been implemented only for the purpose of evading tax. So much for the theory. In practice, until the revision of article a/52/l.64 book of tax procedures by the amending finance law for 2008, the authority should either prove the fact that the contested act was fictional that he hid a different legal transaction, or that its purpose had no other reason than to avoid or reduce the tax burden. The demonstration of such a motive was, in some cases, become very complicated for the administration so that jurisprudence had recently extended the scope of the abuse of rights in rediscovering the notion of fraud on the law whenever there was a gap between the objective sought by the taxpayer and pursued by the authors of the text in question (1).

The new applicable since January 1, 2009, while retaining the concept of fictivité, dedicated the jurisprudential approach, allowing the tax administration to exclude an act where the taxpayer "looking for the benefit of a literal application of texts or decisions contrary to the objectives pursued by their authors (could) be inspired by no other reason than to avoid or reduce the tax burden than the person.""If these acts had not been passed or made, would normally supported, having regard to its situation or its actual activities. The removal by the legislature of any reference to a particular tax and the reference to the manifestation of a will written as not written to defraud "intent" of a text, or even of a decision, give the new text an unprecedented scope for a device of a repressive nature. Because it is well a repressive wide appliceation text which the judge of the tax will further define precisely the scope to enforce the principle of proportionality established by article 6-1 to the European Convention on the rights of man and fundamental freedoms of 4 November 1950, as held the ECHR and the Council of State. (2) The profound developments made to the procedure for the Suppression of abuse of right fed the Fouquet report recommendations on 23 June 2008 concerning the legal security in tax matters.

Application of a "decision".

This intention of legal safety displayed by the initiators of this scheme seems to have unfortunately been altered by the addition, the judicial definition, an abuse which would be based on the literal application of a "decision", and not only of a text. During the parliamentary debates, the Minister of the Budget is is wanted reassuring indicating that this term was the only ministerial decisions. However, for a long time already, any taxpayer knows that the doctrine of the administration, it is expressed as circular or ministerial response statement has no mind. If it is creative of enforceable rights for the taxpayer, it is only when the latter applied literally, so that his application may be, by construction, as non-abusive.(3)

The reason is not dogmatic, but purely practical; If the intention of the legislature is sometimes difficult to establish despite the publication of parliamentary debates, the officials of the Ministry of finance unfathomable remains even when sometimes they have to confront the judges of the Council of State in the development of certain texts or exchanging views with the representative bodies of the taxpayers. Moreover, it would be strange that, in a State of law, the judge is led to plumb the intent of the anonymous author of an administrative act to resolve a dispute that could trigger sanctions to criminal. This reference to "decision" was taken over by Bercy of the draft text introducing the concept of abuse of rights in the LFSS for 2009 to match the notions of abuse of rights in social and fiscal matters. While laudable intention, but which remained without next since this reference has disappeared from the final version of the LFSS passed by the Parliament.

Worse, in an area where sanctions have a recognized repressive character, this reference we seem to contradict both the original intention of the legislature to ensure legal security to the taxpayer and creates, for the future, a source of arbitrariness in the application of tax law, economic actors would have to happen in an uncertain climate.