Selection of administrative court rulings
A concession contract is defined as one in which a private individual or company is entrusted, at its own expense, with the execution of a public work or the provision of a public service, and is remunerated by being entrusted with the operation of the public work or the extension of the public service, with the right to collect fees from the users of the work or from those who benefit from the public service. It covers not only the management of the public service, but also the construction or extension of the works required to manage the public service. A leasing contract, on the other hand, is a contract under which a public entity entrusts a third party with the management of a public service at its own risk, by making available to the third party, in return for payment of a fee, the works required to provide the service. As a result, the operator simply manages the service, and in principle has no public works to carry out. It may, however, be required to carry out maintenance or extension work on the network, without altering the nature of the contract. In the present case, it is clear from the terms of the public service delegation contract between the applicant company and the Syndicat Mixte de l'Aéroport de Beauvais-Tillé (SMABT) that it is not of the "dual" nature claimed by the applicant. Nowhere does the term "affermage" (leasing) appear, and the parties make no distinction between the management and operation of returnable assets, own assets or trade-in assets. On the contrary, only the term "concessionnaire" is used to designate the applicant, when the term "délégataire" is not used. Above all, the fixed assets made available by SMABT are valued at around 30 million euros, whereas after discounting, the concessionaire is required to carry out a multi-year program of works in excess of 70 million euros, including in particular the construction of a new terminal and an air safety system on the runways, which certainly cannot be described as ancillary maintenance or rehabilitation work, given their scale. Although these works do not constitute initial works, they nevertheless constitute extensions to the public facility, the completion of which is one of the decisive objectives of the contract. It follows that the public service delegation in question has the exclusive characteristics of a concession contract. Consequently, the applicant was required to record the value of the returnable assets entrusted to it by the SMABT on its balance sheet, and the department was right to value these assets in accordance with the accounting valuation method set out in article 1499 of the French General Tax Code.
Contrary to what the applicant company maintains, standard premises no. 66 in the La Courneuve minutes, corresponding to a property built in 1922, with a weighted surface area of just 235 m², in which a wine merchant, restaurant and hotel were operating in 1970, and which corresponds, in 2021 and 2022, to a bar-restaurant-hotel that has never been classified as a hotel, does not constitute a relevant basis of comparison for determining the rental value of the chain hotel it operates, which was completed in 1989, has a weighted surface area of 1,277 m², benefits from the thermal and sound insulation of the time, is modern in design, and has all the comforts of a two-star hotel, with each of its 68 rooms featuring a bathroom. Furthermore, it is clear from the investigation, and not seriously disputed, that in view of the results of a search carried out by the tax authorities, which looked at 125 terms of comparison, no standard premises regularly appraised or with the same characteristics as the property to be appraised, located in La Courneuve or in an economically comparable commune, could be validly used to carry out the appraisal by comparison of the hotel concerned. Consequently, the tax authorities were entitled to use the subsidiary direct assessment method provided for in article 1498, paragraph 3 of the General Tax Code, to determine the rental value of the hotel in question. Finally, it is also clear from the investigation that this method should have led, by reference to disposals that took place on dates closest to January 1, 1970 on comparable properties located in communes economically similar to La Courneuve, in particular the contribution of an Ibis hotel in Sarcelles in 1981 and the VEFA sale of an Ibis hotel in Bobigny in 1984, the 1970 rental values of the hotel in dispute of 34,034 euros and 33,475 euros, i.e. much higher than the value of 29,202 euros that would have been used as the basis for the 2017 tax assessment in the absence of the integration on January 1, 2017 of the results of the revision of rental values for business premises provided for in the amended article 34 of the 2010 Supplementary Finance Act. In this respect, while the applicant company argues that the assessment made by the administration is based on an interest rate of 9 %, which is excessive, it does not justify this by simply producing comparative elements relating to the year 2024.
The applicant company is claiming the application of the various measures for neutralizing the effects of the reform of rental values for business premises, provided for in XVI and XXII of article 34 of the amended finance law for 2010, by taking into account a corrected rental value for 2016, as it emerges from its dispute submitted to the Administration in respect of that year. However, it follows from the instruction that the rental value of the hotel it operates was determined, for 2017, after referral to the Commission intercommunale des impôts directs de l'établissement territorial Grand Paris-Grand-Est, by the direct assessment method provided for in 3° of article 1498 of the CGI, This method was rightly applied in the absence of any standard premises that could be validly used as a basis for comparison, either in the municipality of Livry-Gargan, or in a locality with an economically similar situation to that municipality. It follows that any reduction in the rental value for 2016 would have no impact. Moreover, the terms of comparison used to determine this rental value are irrelevant, given that the standard premises no. 210 in the Paris 14th official report, whose rental value has not been corrected in accordance with article 324 C of Appendix III to the CGI, was built in 1926 and in 1970 corresponded to a seven-storey building with no lift, a seven-storey building with no elevator, in no way comparable to the modern chain hotel operated by the applicant, and that the standard premises no. 61 in the Saint-Cyr-l'Ecole report, whose rental value was also determined irregularly, had only thirteen rooms and was, moreover, demolished and rebuilt after 1970.
For the purposes of its business, the applicant company is connected to the electricity grid and has an electrical transformer with a capacity of 1,250 kilowatts, supplied with electricity at a voltage of 20,000 volts, which it transforms into electricity at a voltage of 380 volts. This electrical installation supplies all the electrical equipment used on the site, whether for production, lighting, security or general services. While the applicant maintains that the components of this installation should be excluded from the tax base, the mere fact that a 20,000 volt current delivered by a medium-voltage installation is transformed into a three-phase 380 volt current does not allow it to be considered as specifically adapted to the activities likely to be carried out in an industrial establishment within the meaning of article 1499 of the CGI.
It follows from the investigation that, in order to carry out the valuation of the property in dispute, the tax authorities used as a basis of comparison for the application of the provisions of article 1498 of the CGI in force on December 31, 2016, the standard premises no. 163 of the valuation report of the Perpignan report, which corresponds to the Paris-Barcelona hotel and whose unit rate is 5.87 euros per m². In order to contest the relevance of the standard premises used to calculate the rental value, the applicant company maintains that it is located in the immediate vicinity of the railway station, in the city center, which is a very favourable location, given its ability to attract travellers, and in particular non-vehicular customers. It points out that its establishment is located on the outskirts of Perpignan. However, it is clear from the investigation that the applicant's establishment benefits from a very favourable location, since it is in the immediate vicinity of the airport and the city center, and benefits from free enclosed parking, unlike the Administration's standard establishment. In addition, given the absence of free parking and its characteristics, the applicant's standard premises no. 166 cannot be considered a better benchmark than the Administration's standard premises, which should therefore be used to calculate the property tax on built-up properties for 2021.
The applicant company maintains that the surface areas corresponding to corridors, clearances, storerooms, sanitary facilities, checkrooms, recreation rooms and leisure areas should be given a reduced weighting because they do not correspond to the main use of the premises for office purposes, and thus proposes, for a total actual surface area of 2,030 m², a surface area of 863 m² weighted at 1 and a surface area of 1,167 m² weighted at 0.50. However, on the one hand, it does not follow from articles 1498 of the CGI and 324 Z of Appendix III to the said Code that these premises must in principle be considered as not being used for an activity corresponding to their main purpose. Secondly, by merely producing floor plans of the various floors and rooms designated, a breakdown of surface areas and a summary table, without mentioning for each of those in dispute the reduced use made of them, a factor which only the applicant knows about and which would justify, in the light of the aforementioned provisions of article 324 Z of Appendix III to the CGI, a weighting other than that applied to it, the applicant does not provide the Court with the means to assess the merits of its claim.
