Subcontracting expenses

Evolution Réglementaire : Publication des modalités d’agrément des organismes publics

From 1er janvier 2022, la Loi de Finances 2021 a prévu la suppression du doublement des dépenses engagées vers les prestataires publics ou assimilés publics, et la fin de la dispense d’agrément pour lesdits organismes.

Ainsi, à compter du 1er janvier 2022, tous les organismes de recherche, qu’ils soient publics, assimilés publics ou privés, devront être titulaires d’un agrément délivré par le ministre chargé de la recherche pour que le donneur d’ordre puisse bénéficier du CIR à raison des dépenses correspondant aux opérations de recherche qu’il leur confie.

Le MESRI par une mise à jour de son site internet du 15 décembre, a mis à disposition les formulaires à remplir pour l’obtention de l’agrément des organismes dispensés avant 2022.

Veuillez trouver ci-après le lien vers lesdits formulaires.

https://www.enseignementsup-recherche.gouv.fr/fr/demande-d-agrement-cir-pour-les-structures-publiques-ou-assimilees-82660#.YcrkF_2t6X8

Comme envisagé, le formulaire devient obligatoire pour toutes les sociétés mais les pièces justificatives varient pour les organismes publics ou assimilés. Pour la plupart, seul l’envoi du formulaire est demandé.


Evolution législative – Adoption en deuxième lecture du Crédit d’Impôt en faveur de la recherche collaborative – Décembre 2021

Ce crédit d’impôt de 50% (pour les PME) et 40% (pour les non-PME) serait calculé sur les dépenses consécutives à une collaboration R&D réalisée avec un Organisme de Recherche et de Diffusion de la Connaissance (ORDC).

Lors de ce second passage devant la chambre basse, le plafond des dépenses de recherche retenues dans la base de calcul, est passé de 2 M d’€ à 6 M d’€. Il a également été ajouté que le bénéfice du crédit d’impôt serait conditionné au respect du régime cadre relatif aux aides à la recherche, au développement et à l’innovation.

Pour rappel, ce dispositif ne serait pas cumulable avec le Crédit Impôt Recherche (CIR) et concernerait les contrats conclus jusqu’au 31.12.2025.

Il faudra attendre la promulgation du projet de loi de finances (PLF 2022) et la publication d’un décret d’application pour connaître les modalités de mise en œuvre de ce crédit d’impôt.

Source: https://www.assemblee-nationale.fr


Case law - The Council of State provides additional details on the possible valuation by the approved subcontractor of the expenses entrusted by a principal - June 2021

In a judgment of June 18, 2021, the Council of State ruled on the methods for valuing the expenses of the approved subcontractor.

As a preliminary point, it is advisable to recall the judgment of the Administrative Court of Appeal of Versailles of January 22, 2019. Indeed, this case law reveals 4 cumulative conditions allowing an approved subcontractor to retain in its CIR expenditure of R&D in connection with operations entrusted by a principal, without the latter being legitimate to declare the invoice in its own CIR. Thus, we found the following 4 cumulative conditions:

  • R&D work must be distinct from the services covered by the subcontract,
  • Their cost is therefore not fully / directly passed on to the ordering party,
  • The results of this work are used for the service provider's own account,
  • The service provider retains the intellectual property of this R&D work

In the decision of the Council of State in question, the judges came to specify the methods for calculating the base of the CIR benefiting the approved subcontractor. In this case, Sopra Steria, which benefited from the authorization, was forced by the administration to exclude from the base of its own CIR the invoices sent to its principals who themselves benefited from the CIR on these expenses entrusted to the company in question.

The company therefore availed itself of the benefit of the CIR by justifying that the entrusted work which was the subject of invoices questioned by the administration were computer engineering services, but that the research work resulting from these orders were not provided for in the contracts, and therefore no research services had been directly ordered.

In a judgment of June 4, 2019, the Administrative Court of Appeal of Versailles hearing the dispute considered that one of the cumulative conditions, namely the absence of full repercussions of the cost to the principal, was not respected. .

The Council of State censures this judgment by considering that when an approved body “ incurs research expenses for its own account, including in the event that they are caused by the performance of services on behalf of a third party whose purpose does not relate to the performance of research operations, this organization may include these expenses in the basis for calculating its tax credit if they meet the requirements of article 244 quater B of the general tax code, without these provisions requiring it to deduct the sums invoiced from this base. to the beneficiary of services, which do not constitute, for the latter, expenditure eligible for this tax credit ".

In addition, it is noted by the Council an error of law in that the Court of Appeal refused to the company the benefit of the CIR based, in particular, on the circumstance that it had passed on in full to the principals. the financial expense related to these operations. In addition, it is specified that it is only necessary to verify whether:

  • The expenses in question were indeed research expenses.
  • Ensure that Sopra Steria's co-contractors have not entrusted it with carrying out research operations
  • That the cost of expenses did not constitute expenses eligible for the research tax credit for the principal

Thus, in conclusion, the Council of State, by specifying the methods of calculating the base of the research tax credit from which an approved research organization can benefit at the rate of research expenses for its own account, reduces the list of cumulative conditions established by the decision of the CAA of Versailles of January 22, 2019. Thus, the requirement of non-passing of costs to the principal is censored.

However, the condition aimed at ensuring that the cost of expenditure did not constitute expenditure eligible for the research tax credit for the principal could be limited by recent case law (Council of State of July 23, 2020, FNAMS). Indeed, it could be complicated for a subcontractor to demonstrate that the cost of the expenses did not constitute expenses eligible for the research tax credit for the principal, even though the principal can value in its own CIR, subcontracted expenses when they are necessary for the R&D process of their eligible project, and even when the subcontracted operations do not individually correspond to R&D work.

Source: Council of State, 9th - 10th chambers combined, 06/18/2021, 433319, Société Sopra Steria


Finance law for 2021 - End of the doubling of subcontracting expenditure with public bodies - January 2021

Article 35 of the finance law for 2021 removes, as of January 1, 2022, the mechanism for doubling the base of research services entrusted to public or similar third parties dating from 2004 which encouraged more synergy between the sector public and private.

The abolition of this doubling of the base would allow harmonization at European level of the methods for taking into account subcontracting expenses. This also leads to the abolition of the ceiling increased by 2 million euros at the rate of expenditure entrusted to public bodies. The initial ceiling of € 10 million for subcontracting expenses continues.


Conditions for taking into account R&D expenses by a private CIR approved subcontractor - September 2020

The Council of State canceled the restrictive doctrine of April 4, 2014 on subcontracting.

This had the effect of obliging approved organizations to include in their CIR the eligible expenses made on behalf of eligible third parties, before deducting the amount of the invoice, the excess impacting the expenses of internal projects.

An approved subcontractor can therefore now do without re-invoiced projects in order to declare only operations carried out for its own account, thus benefiting on its internal projects from the same advantages in terms of CIR as any declaring company.

Source: CE, 09/092020, n ° 440523 


Case law - Nature of eligible work - July 2020

The Council of State confirms that, when a company entrusts an eligible organization with the execution of services necessary for the realization of its research project, the corresponding expenses can be taken into account for the determination of the amount of its credit. tax even though the subcontracted services, taken in isolation, do not constitute research operations.

Thus, this decision should put a stop to the practice of the tax administration which consists in excluding the valuation of any externalized expenditure by requiring that the latter correspond to a real clearly individualized R&D operation.

However, this does not exempt the declarant from having to justify the contribution of the service within the framework of his project and how it fits into the R&D process, even though it is not directly a question of research operations.

Finally, this decision contradicts that of December 20, 2018, during which the Administrative Court of Appeal of Paris ruled that subcontracting expenses which do not correspond to real clearly individualized R&D operations are not eligible for the CIR, even though these expenses are essential for the smooth running of the project

Source: CE, reading of 07/22/2020, n ° 428127

Identical conclusions in a similar procedure: TA de Strasbourg, 05/08/2020, n ° 1807359


Case law - Exceptional conditions for taking into account a co-contracting contract - May 2020

An approved organization considered that it could declare in its own CIR the expenditure relating to the work of an R&D project, governed by a co-contracting contract with a non-approved organization, defending the non-eligibility of its invoice to the co-contractor.

The court considered that the eligible work had indeed been outsourced and entrusted within the meaning of the CIR, despite the co-contracting nature of the contract, since:

  • Research operations are clearly defined
  • The work is carried out by the co-contractor in return for a predefined sum
  • The company that values the expenses benefits from the results of the work.

Source: CAA of Versailles of 05/28/2020, N ° 18VE03123


Finance Law for 2020 - Supervision of cascading subcontracting - January 2020

The eligibility of expenditure is limited to the only part carried out directly by approved public or private service providers (the client cannot retain in the base of its CIR R&D operations entrusted to approved public or private bodies which would then be subcontracted by the latter to unapproved private bodies).

The valuation of such an expenditure is possible as long as all the interveners in cascade are themselves approved or public.


Case law - Conditions for taking into account R&D expenses by a private CIR-approved subcontractor - February 2019

A company had been tasked with performing subcontracting services during which it carried out R&D operations, so it had assumed the financial burden without passing the cost on to the principal and for which it owned the result. reserved. The administration considered that the company should not have included these expenses in its base of CIR. It should be noted that the principals, for their part, did not include these expenses in the basis of their own CIR, in particular because the subcontracting contracts provided for the performance of IT and engineering services they did not provide for the performance of of R&D operations.

Several years of CIR were involved, the trial judges finally took a position in favor of the company by admitting the inclusion of these expenses in the base of the CIR which it declared because the R&D expenses had been incurred by the company. subcontractor on its own initiative and had not been supported by the principals. In addition, the company retained ownership of the results of the research.

Referring to this judgment, there appear 4 cumulative conditions allowing an approved subcontractor to retain in its CIR R&D expenses in connection with operations entrusted by a principal, without the latter being legitimate to declare the invoice in its own CIR:

  • R&D work must be distinct from the services covered by the subcontract,
  • Their cost is therefore not fully / directly passed on to the ordering party,
  • The results of this work are used for the service provider's own account,
  • The service provider retains the intellectual property of this R&D work

Source: CAA of Versailles on 01/22/2019, n ° 17VE01733 and n ° 17VE03361 / TA Montreuil of 02/28/2019, n ° 1709981


Case law - Purpose of the service and importance of the contract - November 2018

In a judgment of 22 November 2018, the Administrative Court of Appeal of Versailles ruled on a case of ineligibility for the CIR for expenditure incurred with a public research body.

In this case, a company valued invoices from an Institute by asserting that the latter carried out fundamental research work on its behalf. However, on reading the convention, the judges noted that the only counterpart of the sums in question lay in the devolution of trademarks and patent licenses and not in the performance of research work.

In addition, the judges noted that neither the agreement nor the instruction shows that the research work carried out by the Institute was the subject of an upstream definition to which the ordering company would have taken part.

Source: CAA Versailles, 22-11-2018, n ° 17VE01553


Case law - Undertaking - March 2018

This ruling specifies that the activity of bringing engineers and business consultants together for the performance of research operations is not an activity eligible for the research tax credit. 

The applicant company claimed to be able to benefit from the research tax credit by arguing that the MESRI approved a wage-carrying company as a private research organization.

The judges rejected the company's request, considering that it does not fall within the scope of the provisions covered by the doctrine since it does not itself carry out the operations necessary for the research.

Source: Administrative Court of Appeal of Bordeaux, 16-03-2018, n ° 16BX00922, 16BX00923, 16BX00924


Case law - Distinction between subcontracting and co-contracting (or co-financing) - May 2017

In the present case, the judges considered as ineligible the expenses incurred by a company with the INRA (the supposed subcontractor) concerning a project which was the subject of a consortium agreement and in which the two entities were co-funders. The Court therefore considered that the expenditure in question corresponded to “the financial contribution” following the consortium agreement.

Thus, the principle of co-financing seems to be in contradiction with subcontracting within the meaning of the CIR which supposes a real initiative on the part of the ordering party to entrust R&D operations to a subcontractor.

Source: Paris CAA of 05/30/2017, N ° 16PA00453 and N ° 16PA00455


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