In this December 2023 ruling (Conseil d'Etat, 9ème - 10ème chambres réunies, 12/12/2023, 470038), the judges of the Conseil d'Etat ruled that the fact that the advantages obtained by an abuse of rights could have been achieved by a "legal" means does not prevent the abuse of rights from being characterized as an abuse of rights.
"it follows from what was said in point 2 above that in holding that the fact that Mr. A... could have, by making tax choices other than those he made, apprehended the cash of the company Fidem tax-free had no bearing on the existence of an artificial arrangement and on the right of the administration to dismiss it as not being enforceable against him, the court did not commit an error of law.
6. Secondly, the Court did not err in law or mischaracterize the facts, which it did not distort, in holding, in a sufficiently reasoned decision, that the transaction at issue, which it assessed in its entirety and which, through the artificial interposition of the Luxembourg company Holdem, enabled the tax-free appropriation of the assets of the French company Fidem, constituted an abuse of rights. (...).
So it doesn't matter if a taxpayer can obtain the same advantage by using other "legal" arrangements. The existence of a lawful alternative does not make it possible to escape the abuse of rights procedure provided for under article L64 of the French tax code (LPF).
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