Getting Mortgage on second homeObtaining a mortgage on a second home
Find out more about the fiscal and juridical issues of a buyer's trip to own a second home in France. Purchasing property in France may seem tempting, but purchasers should be mindful of the fiscal and regulatory implications. For the Americans, the picture is even more complicated as the fiscal and judicial regimes (and cultures) of France and the United States are very different.
Nicolas Sarkozy, the new president of France, announced a new reform of the taxation system during his election campaigns and released it on 22 August 2007 (1). It aims to make investing in property in France more appealing to private foreigners. It follows an US buyer's trip towards proudly owning a plot of land in France as a second home ("pied a terre ") and describes some of the inheritance instruments available to non-French people.
Buying properties that find the right house may involve the use of a realtor ("agent immobilier"). Provided US purchasers can "parler français" and speak fluent English, they can dare to buy directly from an owners. However, once the prospective tenant has chosen the best possible home and the sale prices have been agreed between the seller and the prospective tenant, the prospective tenant will usually enter into a letter of intent known as a "promesse de vente" or "compromis de vente".
A lawyer dealing with French estate issues is referred to as a "notary", not to be mistaken for our solicitor. Notaries are almost equal lawyers in France. All necessary juridical documentation in connection with the transfer of ownership of the plot of land is drawn up by the civil law ledger and the entry in the register is carried out by the civil law ledger.
At the end of this multi-month long procedure (which can be slow in France), the contracting partners signed the definitive contract of acquisition or "acte de vente" and the purchaser becomes the proud proprietor of a plot of land in France ("bien immobilier"). As well as payment of the selling price, the purchaser usually also bears the cost of the rights and transfers of the estate in France, which are payable to the notary before the transaction is concluded.
The cost is usually around 6.5% of the total cost, which comprises the tax to be paid to the State, stamps, registration fees, notary fees and TVA on the notary fees. These numbers are legally defined (non-negotiable) and largely the same in France.
Furthermore, realtors usually levy a commission of between 4 and 10 per cent of the net sales value. According to the particular circumstances of the individuals, the favoured type of possession may differ. Private property: US citizens/residents can acquire properties in France in their own name.
When they do so, they are subject to France's succession and taxation legislation as properties and in accordance with the provisions of civil law. These include the compulsory succession rule ("réserve héréditaire"), which must transfer a certain part of the assets to certain members of the household, even infants.
As an example, a person who has a minor must give at least half of their inheritance to that minor and a person who has two minor must give at least two-thirds of their inheritance in equitable proportions to their two minor heirs. The Community regime: These provisions on compulsory inheritance are designed to enable some married couple to safeguard the survival of the partner and to make sure that the partner who survives inherits France's heritage after the decease of one of the partners and is not displaced by the descendants because of it.
The preferred method of owning immovable properties in France is generally the Communauté Universelle Avec Clause d'Attribution, which is a kind of marriage agreement in France in which a testator hands over all his or her immovable wealth to the living partner.
Therefore, if the deceased survives and if the deceased still holds the real estate, the total amount of income taxes payable by the deceased is likely to be higher in the long term due to the elimination of income taxes. Purchase through a corporate body: As the above-mentioned joint proprietorship scheme is not recommended for married couples having a child from a previous matrimony (children could assert their compulsory inheritance share), an option is to acquire the status through a French corporate body or SCI.
In fact, the stock of an SCI is considered immaterial individual ownership and is subject to the laws of the shareholders' domicile under the provisions of conflict of laws principles. US citizens can therefore prevent the compulsory inheritance of their stakes in an SCI owning properties in France. However, please be aware that if the SCI' s exclusive aim is to circumvent the regulations on compulsory inheritance, this may be considered a scam by France' s judiciary and may break the mist.
A drawback of an SCI is when the home is leased with furniture. The SCI is no longer regarded as a single transparency unit for personal tax purpose and is subject to corporation taxation during the period of title to the immovable assets. As the EURL needs only one stockholder, in certain circumstances this is an asset for the possession of immovable assets in France over an SCI requiring at least two stockholders.
In addition, the EURL may choose to apply the personal taxation scheme if the single investor is a natural person, even if the EURL rents the rented immovable asset. Therefore, this type of owner is preferable to the SCI for a person who rents properties in France.
It is also preferable for a natural person residing outside France, who does not want the compulsory inheritance provisions to be applied, since the units of an SCI, like the units of a EURL, are immaterial private assets subject to the rights of the testator or the shareholders. These forms divide the income between a living interest and a residual interest.
In the event of the decease of the spouse whose descendants are from a prior matrimony, the share of his/her lifetime expires and the remaining partner becomes the exclusive proprietor of the immovable object as the proprietor of the remainder: the "Tontine" condition is a condition that is included in the document when the immovable object is purchased.
The agreement provides for the survival of the marriage partner to be based retroactively on the assumption that he or she was the owner of the whole real estate right from the start. Tontinklausel represents the type of title "co-ownership with survival rights" and under certain conditions is also an efficient instrument for circumventing the compulsory inheritance regulations.
Unlike the United States, which levy taxation on the basis of nationality, France levies taxation on natural persons on the basis of their place of domicile. Foreigners are liable to pay VAT on their taxable profits from sources in France and on wealth located in France, such as immovable properties. Personal Income Tax: Although the landlord is not a francophone citizen, the rent earned from the francophone home is still liable to taxation in France.
According to footnote 164 of the General Tax Code, the concept of France's revenue also covers profits from the disposal of immovable assets in France. In addition, Art. 6 of the Convention on the Tax on Income provides that a person residing in a State Party (i.e. the United States) who owns immovable assets in the other State Party (i.e. France) may be subject to tax in the State in which the immovable asset is held.
As a rule, France's personal revenue taxes are based on the graduated personal revenue rates, and non-residents with France's personal revenue must submit an annuity in the same way as inhabitants. Nevertheless, the non-resident VAT rates are a 20 % threshold, unless the taxable person can prove that the rates would be lower if his global overall earnings were declared to and subject to taxation by the Spanish State.
In France, property taxes can be levied on the rat catcher. Property taxes were first introduced in France in January 1989 under the name Impôt de Solidarité sur la Fortune or ISF. Property taxes are payable by persons resident in France who have assets subject to taxation of more than 760,000 euros throughout the world (as of 2007).
Persons residing outside France are liable to property taxes on their property located in France, the value of which exceeding 760,000 per person per house or per "foyer". "Therefore, the possession of a company in the USA of a piece of land is liable to property taxes in France if its net value exceed ?760,000. 2. The property duty shall be calculated on the basis of the net value of the net value of the property in France and any mortgages or debts backed by the property in France shall therefore be subtracted before the property duty is calculated.
Estate owner in France Investment income tax: If an owner wants to buy his house in France, it is subject to investment income taxes. Persons domiciled outside the EU are usually insured with a 33rd birthday. 33% (EU citizens are subject to a 16% taxation rate) if they are selling their properties in France that they have own for less than 15 years.
Estate tax: In the event of decease, perpetrators are liable to estate duty in France, regardless of whether the person who owns them is domiciled in France or not. Succession duty in France is due when a recipient receives a heritage of land owned in France, which includes stocks in a SCI or EURL.
France's estate taxes range from 5 to 40 per cent for related companies and individuals. Under the leadership of Mr Sarkozy, the incoming chairman, the new head of the France administration adopted a bill significantly amending France's estate taxation legislation. In the past, living married couples had a 76,000 euro exempt from taxation and were then subject to a 5 to 40 per cent rate on property left to them by their deaths.
Under the new Act, a spousal allowance similar to that of the United States is created, with the exception that lifelong presents to a spouse are still liable to donation taxes. Also, the new Act will increase the reduction for child, estate and donation taxes as described below. Life donations may be a tax-favourable option for the sale of the real estate in France in order to reduce estate succession taxes in the event of decease.
According to the new legislation, each of the parents can now donate 150,000 euros tax-free to each of their child every six years. Presents to a child can be properties or interests in an SCI, as well as money or other financial asset. Presents such as these are made by a Notary Public certificate of France.
You are also liable to US transfer taxes. Under the new legislation, a one-off reduction of 30,000 is also granted for presents to a son, a grandson, a great-grandson or in the case of the presence of such offspring, nieces or nephews. However, this reduction shall apply only to monetary presents and not to presents of immovable properties.
US tax breaks US nationals are usually assessed on their global incomes. Given that both the United States and France could potentially tax France's immovable properties twice, the Treaty provides guidelines as to which jurisdiction the tax authorities of the countries concerned have. US citizens/residents can acquire properties in France in their own name.
When they do so, they are subject to France's succession and taxation legislation as properties and in accordance with the provisions of civil International Matters. In particular, Article 6 of the Treaty (income from properties ) provides that the taxable amount of an estate received in a State Party (i.e. the United States) in the other State Party (i.e. France) may be that of the State in which the estate is located (i.e. France).
The Treaty therefore does not confer an exclusive right of taxation on France as the host State, but confers on it the right of use. Similarly, the Treaty provides in Art. 13 (Capital Gains) that profits arising from the sale of immovable property located in a State Party may be subject to taxation in that State.
Accordingly, the earnings (both rent and principal gains) from the rented object in France are subject to both U.S. and domestic personal taxation; however, the taxpayer would normally be eligible for a US personal taxation allowance on their U.S. tax returns for personal taxation of those earnings in France.
Those provisions shall be applicable to non-residents who own immovable assets in France. To sum up, the most appropriate type of owner for the acquisition of immovable assets in France will depend on the particular situation. A potential purchaser of a piece of land in France should always consult a lawyer for expert assistance. Furthermore, the following should be taken into account: the effects of France's capital gains taxes, how to prevent being domiciled in France and being liable to France's personal gains taxes, whether a will is required to sell the immovable and what advantages can be derived from the contract.
Under the new taxation system, US citizens can now transfer their immovable assets in France tax-free to their living spouses, taking into account that estate duty remains payable on the portion passed on to their sons or other dependants. By donating 150,000 euros to each of their six-year-old pupils, however, they can significantly reduce the amount of taxation payable by their French-resident pupils.
Provided you have appropriate fiscal plans and consulting, a touch of perseverance and a g of toleration, the ownership of a property in France can almost be a mere "plaisir" (pleasure)........ She is a Senior Associate with Holland & Knight's Privat wealth management group, based in Northern Virginia, where she manages the firm's global inheritance work.
Mr. Bagot is an employee in the firm's Washington, D.C. based team. On 22 August 2007, the new Act of 21 August 2007 was promulgated in the Journal Officiel, the journal of France, when most of the provisions came into force. Under the new Act, Loi n 2007-1223 of 21 August 2007 en faveur du travail, de l'emploi et du couvoir d'achat will be renamed.
Please be aware that the Income Agreement (treaty) between the USA and France contains regulations on the administration of property taxes and changes the above mentioned regulations for US nationals moving to France as follows: i) US nationals in France are normally responsible for property taxes like any other residents taxpayers; ii) when US nationals move to France for the first time, they are not responsible for property taxes on the value of their non-French property until 1 January of the fifth year following the year of transfer; and iii) in order to qualify for more than one of the five-year exemptions for overseas property, a US national must have served at least three years in France before reverting to France.
Furthermore, according to Art. 6 of the Treaty, a person residing in one State Party (i.e. the United States) and taxable in the other State Party (i.e. France) may be subject to net taxation on immovable assets in the other State Party if such taxation is not provided for under the national laws of that other State Party.