Capital Reduction Following Share Buybacks and Cancellation: A Change in Tax Rules on the Horizon?

Capital Reduction via Share Buyback and Cancellation: A Potentially Taxable Gain

A capital reduction can generate a gain for shareholders. Traditionally, this gain was taxed under the capital gains regime applicable to disposals of securities.
Since the Amending Finance Act of 2014, the tax treatment of share buybacks followed by cancellation has been standardized. From then on, all amounts received in the context of such an operation fall under the capital gains regime for disposals of securities.

The Tax Framework in Effect Since 2014

Article 112, 6° of the French General Tax Code (CGI) provides that the following are not considered distributed income:
“Amounts or assets allocated to shareholders or partners as part of the buyback of their shares. The capital gains regime provided for, as applicable, under Articles 39 duodecies, 150-0 A, or 150 UB then applies.”

A Challenge to This Regime by Recent Case Law

Recently, two court decisions have challenged the tax treatment of capital reductions carried out through share buybacks followed by cancellation. While such operations are normally taxed under the capital gains regime, the courts reclassified them as distributed income, raising numerous concerns.

Montpellier Administrative Court Case: An Arrangement Deemed Artificial

On February 12, 2024, the Montpellier Administrative Court ruled that a capital reduction carried out by the sole shareholder of an EURL constituted an artificial arrangement designed to avoid dividend taxation (TA Montpellier, February 12, 2024, No. 2201983).
Although the Committee for Tax Abuse had dismissed the abuse of rights procedure, the tax authorities maintained their position.
The judges followed the tax administration’s reasoning, considering the operation to be solely tax-motivated and contrary to the legislator’s intent.

Bordeaux Administrative Court of Appeal Case: A Literal Interpretation of the Law

More recently, an Administrative Court of Appeal also reclassified a capital reduction as distributed income (CAA Bordeaux, April 16, 2024, No. 22BX01822).
In this case, the capital reduction was largely funded by distributable reserves.
The tax authorities argued that since these reserves had not yet been distributed, the capital gains regime could not apply.
The Bordeaux court upheld this position, basing its decision on the provisions of Article 112, 1° of the CGI, without invoking the concept of tax abuse.

Ongoing Legal Uncertainty Pending a Council of State Ruling

It is therefore important to remain cautious while awaiting the Council of State’s ruling on this matter:

• The taxable base for capital gains and for dividends is not the same;
• Certain capital gains on securities benefit from a holding period allowance of up to 85%, whereas dividends benefit at most from a 40% allowance.