Press release - Renewal of the request for early repayment of tax credit debts before filing the tax return

In a press release dated March 2, 2021, Bruno Le Maire, the Minister of the Economy, Finance and Recovery, announced new tax measures to support companies facing economic difficulties due to the health crisis, in particular the renewal of the request for early repayment of refundable tax credits in 2021.

In terms of tax credit, it is expected that the request for restitution of receivables recoverable in 2021 (including the Research / Innovation tax credit), can be requested in advance, before filing the tax return.

Only receivables recoverable in 2021 are therefore concerned (CIR 2020 for SMEs, and CIR not charged for at least 3 years following the declaration for others).

The applicable procedure, specified in the Frequently Asked Questions of the DGFIP devoted to the health crisis, is unchanged compared to last year.

Source: Press release March 2, 2021 - Bruno Le Maire

Case law - Need for the official of the Ministry to request additional information before concluding - February 2021

The MESRI agents who intervene in the tax audit of the Research Tax Credit, are not subject to the obligation to have an oral and contradictory debate with the verified taxpayer.

In a judgment of February 3, the Council of State ruled on the impact of non-compliance with the procedure by officials of the ministry.

The Council of State began by recalling that the officials of the ministry are not subject to the obligation to hold an oral and contradictory debate with the co-payer.

On the other hand, non-compliance with other MESRI obligations can lead to a procedural irregularity, as this would deprive the company of a guarantee. Of course it is necessary to prove a correlation between the non-respect of the procedure by the agent of the ministry and the deprivation of a guarantee having had an influence on the decision of reorganization.

Article R 45 B-1 of the Book of Fiscal Procedures lists the obligations of the agents of the ministry seized within the framework of a control.

The 4 obligations are that the agent must:

- send a request for supporting documents to the company controlled under the CIR.

- guarantee the company a period of thirty days to respond (if necessary extended by the same period on request),

- give the company the option of talking to the agent in charge of the control as part of a second request for additional information,

- and finally, to justify the opinion delivered by the agent of the MESRI when the reality of the allocation to the research of the controlled expenditure is disputed.

Despite the obligations listed, this does not necessarily create an oral and contradictory debate as there is in an accounting verification procedure.

Here, the procedure implies that the MESRI agent, who will note the insufficiency of the supporting documents provided, cannot give his final opinion without having addressed to the company a first request for additional information, then, if necessary, a second which can be the opportunity for the taxpayer to request an interview.

In the present case, the agent of the ministry had not followed the procedure since in his final report, he relied in particular on the insufficient nature of the explanations provided by the company, whereas he had not previously asked him to additional information contrary to what is provided for in article R 45 B-1 of the LPF.

The Council of State then noted that this lack of demand had deprived the company of a guarantee.

Source: Council of State of February 3, 2021 n ° 431253

Finance Law - Additional reporting obligation for companies with expenditure exceeding 10 million euros January 2021

For companies investing between 10 and 100 million, a declaration of the holders of a doctorate financed by the CIR or recruited on this basis must be established in Annex 1 of Cerfa 2069a, taking into account the number of FTEs (equivalent time full) corresponding and their average remuneration.

Government measure - Postponement of the 2016 CIR prescription deadlines - July 2020

For the deadlines granted to both the administration and the taxpayer, these are suspended until 23 August 2020 inclusive and start to run again from 24 August 2020.

The deadline for resuming administration concerning the 2016 CIR will expire after 14/06/2021 (31/12/2020 + 165 days).

Finance law for 2020 - Operating costs - February 2021

The rate of operating costs calculated on staff costs is lowered from 50% to 43% as of CIR 2020.

Case law - Contestation of a refusal of reimbursement - December 2019

It was judged that despite the recognition of an innovative character by the ministry, this was not enough to justify the absence of new techniques. The Court reiterates that the request for reimbursement is a contentious decision.

In this case, a company had requested a reimbursement request for its research tax credit. The tax authorities had refused the applicant company to obtain its reimbursement. The company argued that there was no reason for the rectification proposal and the absence of referral to the advisory committee without bringing new arguments to its case. It requests the appointment of an independent expert.

The Administrative Court of Appeal reiterates the principle according to which the refusal of reimbursement by the administration of the research tax credit is of a contentious nature and does not have the character of a recovery or reorganization procedure. As a result, the guarantees attached to a refusal of reimbursement are not the same as during a recovery or recovery procedure.

The Court reiterates that as long as the company does not justify the new character, does not contradict the opinion of the expert or that of the administration and that it makes no criticism, the latter is not in a position to to demonstrate that its activities constitute a substantial improvement of the processes.

Source: CAA of Nancy, December 27, 2019, n ° 18NC02396

Case law - Guidance on the use of reasons by the administration - December 2019

On the one hand, the administration had refused the reimbursement of the tax credit and had notified a rectification proposal to the company, setting out the reasons for the refusal of reimbursement. However, the Council of State, relying on Articles L 57 and R 57-1 of the Book of Tax Procedures, ruled that the notification of a rectification proposal for the sole reason of referral to the decision rejecting the reimbursement , was not sufficient motivation for the administration.

On the other hand, it was ruled by the Council of State that when the taxpayer receives a proposal for rectification but does not dispute it and does not add any new element to the reasons of the administration, the resumption of the reasons for the response to the taxpayer's observations is on the other hand valid when the taxpayer does not bring any element of dispute to his observations.

Source: CE, December 4, 2019, n ° 424178

The Council of State came to recall the importance of the presence of reasons in a contentious procedure as well as the distinction between an on-the-spot control and on documents.

Case law - Right of return of the CIR within a group - July 2017

Only the parent company is entitled to request the refund of a fraction of corporate tax resulting from the allocation of tax credits for research expenses incurred by other companies belonging to the group.

Source: CAA Versailles of 07/20/2017, n ° 16VE02595

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