Finance bill for 2021

Senate - First part of the PLF 2021

After examining the first part of the finance bill (PLF) for 2021, the Senate voted several amendments modifying or supplementing Article 8 of this draft relating to the adjustment of the research tax credit and the innovation tax credit. Note that these four amendments detailed below have received an unfavorable opinion from the Government. We will therefore keep you informed of developments relating to the parliamentary shuttle.

 

  • Amendment N ° I-29 rect. Bis

The purpose of this amendment is to introduce an obligation to reimburse half of the CIR received from the two previous years when companies close one or more establishments in France, except in the event of the company's activity ceasing. This measure would apply for expenses incurred from 1er January 2021.

 

  • Amendment N ° I-30 rect. Bis

The purpose of this amendment is to introduce an obligation to reimburse half of the CIR received from the two previous years when companies with more than 1,000 employees or belonging to groups of more than 1,000 employees, subject to the research obligation. of a buyer in the event of a collective redundancy plan, have not accepted a takeover offer allowing the same workforce to be maintained. This measure would apply for expenses incurred from 1er January 2021.

 

  • Amendments N ° I-59 and N ° I-850 rect. bis

These amendments aim to postpone for an additional year the removal of the leveling device, applicable within the framework of the research tax credit, for research expenditure subcontracted to public bodies. Thus, this deletion would apply for expenditure incurred from 1er January 2023.

In the subject of the first amendment, it is stated that it is proposed to “postpone its deletion for an additional year, and thus wait until 2023, in order to better understand the consequences for public bodies and businesses, while by deepening the question of its compatibility with European law - the European Commission has not yet pronounced on this subject. ". In any case, “this additional period will be such as to guarantee a more adequate transition period for the various beneficiaries of this tax expenditure, who will be able to anticipate this deadline under better conditions. ".

In the subject of the second, it is supported the fact that this deletion would generate additional revenue of around 150 million euros for the state budget to the detriment of many service contracts.

Source : Senate - Finance bill for 2021

New guide to the 2020 research tax credit

 

The Ministry of Higher Education, Research and Innovation has published its new CIR guide for the year 2020.

This new version brings elements of which we have chosen to present only the most substantial.

 

  1. Cutting the guide

The first point to note in this new guide is in its presentation. Indeed, the MESRI offers a complete CIR guide, like that of other years, but also two focuses which are the extraction of part present in the guide.

So we can find a focus on the part relating to approval, and a focus on the various controls.

As usual, we can find at the end of the guide the model of the supporting file for the R&D work declared to the CIR, as well as the financial summary model which happens to be similar to those of other years.

 

  1. Dematerialization of approval filings

The guide provides details on the dematerialization of approval filings and sets a processing time. The request must be made electronically directly from the service-public.fr website relayed on the pages of the Ministry in charge of Research, or by sending a USB key.

Note that the file sent by USB key will not be treated as a priority.

The average processing time is indicated at 6 months from the time the file is complete.

 

  1. Extension of the recognition of certain eligible activities

  • The field of clinical trials

MESRI recalls in this guide that clinical trials take place in four phases preceded by a pre-clinical phase.

New mention is made of a possible recognition of the eligibility of operations carried out during phase IV, that is to say for operations subsequent to the marketing authorization.

Thus, it is recognized that epidemiological studies, and clinical trials in animal pharmacy involved after marketing authorization, can constitute R&D work when they “ lead to further progress scientific and / or technical ”. This eligibility determination will be made on a case-by-case basis, and will therefore only concern the costs of the steps essential to scientific investigations.

  • The field of higher education and private research (EESRP)

Despite a specific descriptive sheet annexed to the CIR justifying file, which already exists, the CIR 2020 guide devotes a development to EESRP aimed at clarifying the specificities with regard to the CIR system.

It is then given elements of presentation of the establishment and elements of presentation of research work.

  • The field of architecture

The MESRI through its CIR 2020 guide, alerts you to the various errors to be avoided in order to really bring out an R&D project as opposed to an architectural project (standard). It then appears in the guide, 12 recommendations to justify an R&D project eligible for CIR in the field of architecture.

 

  1. Opening of eligible expenses for free share allocations (AGA)

The guide reminds that profit-sharing and profit-sharing are eligible expenses. However, it expands the inclusion in the CIR of participation and profit-sharing in AGMs and stock options, because the company notes a deductible capital loss from taxable income and that this is additional remuneration for the employee.

However, it should be noted that this position is not opposable to the administration. Thus, a taxpayer cannot validly take advantage of this MESRI position to justify the inclusion of this expenditure in his CIR in the event of a dispute by the tax administration.

 

  1. Not taken into account by the MESRI of the jurisprudential developments of the Council of State.

As a reminder, over the past 5 months, two crucial decisions of the Council of State have been taken. First of all, in a judgment of July 22, 2020, n ° 428127, FNAMS, the Council of State ruled that the expenditure corresponding to the performance of services required to the performance of research operations entrusted to an organization mentioned in d or d bis of II of Article 244 quater B of the General Tax Code, may be taken into account for the determination of the amount of the CIR even if the subcontracted services, taken in isolation, do not constitute research operations.

Then, in a judgment of September 9, 2020, n ° 440523, Sté Takima, the Council of State annulled the administrative doctrine, and considers that approved private research organizations carrying out research expenses on behalf of a third party should not include the amount of expenses incurred in the base of their CIR and in Deduct the total amount of the sums invoiced in remuneration for these services.

However, the MESRI remains on its past positions in this CIR 2020 guide and does not take note of the jurisprudential developments of the Council of State. Indeed, it is recalled many times the need that the subcontracted work must correspond to clearly individualized R&D operations, but also that an approved company that chooses to benefit from the CIR must declare all of the R&D, and in deduct the invoices sent to its principals.

 The latest returns from tax audits show that the administration is applying, without appeal, the conclusions of these leading decisions.

In line with this failure to take into account the latest developments, the guide strictly rules out the recognition of a possible eligibility of the service under management by affirming that this staff is not eligible for the CIR.

Finally, the distinction between capacity subcontracting and specialty subcontracting that appeared in the 2019 CIR guide is not repeated in this guide.

 

In conclusion, despite the undeniable usefulness of this guide and the content which is intended to be more and more detailed and rich, the failure to take into account the aforementioned important changes obliges to reiterate, as a reassurance, the non-opposability of this document .