Residence for tax purposes and COVID-19 lockdown
Could a continuation of the COVID-19 lockdown affect assessment of the criteria for residence for tax purposes for persons residing outside France who are prevented from returning home ?
Article 4 B-1 of the French General Tax Code sets out the criteria for residence for tax purposes and stipulates that the following persons are considered to be residents of France for tax purposes :
- Those who have their household or main residence in France,
- Those who carry on a professional activity, wage or non-wage, in France unless this employment is incidental,
- Those who have their main business interests in France,
Without prejudice to provisions to the contrary that may be provided for in bilateral tax treaties.
As regards the personal criterion of having one’s household or main residence in France, the Conseil d’État (French Supreme Administrative Court) held in a judgment of 3 November 1995 (no. 126513), that the main residence criterion only applies in the event that the person does not have a household, which is defined as his/her family’s usual home and, that, in all cases, temporary stays elsewhere due to extraordinary circumstances are not taken into account.
It is further specified that “for application of the provisions […] of article 4 B […], the household is understood as being the place where the taxpayer usually lives and where the centre of his/her family’s interests are, without taking account of temporary stays elsewhere due to the requirements of his/her profession or extraordinary circumstances, and that the taxpayer’s main residence can only dictate his/her residence for tax purposes if he/she does not have a household”.
An extraordinary circumstance may be materialised by statutory or physical impossibility to return to the country in which the person was previously resident for tax purposes, for the period during which said impossibility persists, owing, for instance, to the closure of the borders of the country of residence or the country in which he/she is staying(1), without any exception being possible, or to the absence of any means of transport to the country of residence.
International tax treaties also provide that the fact that a person is temporarily detained in France due to an event of force majeure cannot, for this reason alone, cause him/her to be considered as having set up his/her permanent household or having the centre of his/her vital interests there.
(1) Unless the border closure was announced with adequate notice to allow the person to return to the country in which he/she was previously resident for tax purposes.
UPDATED DINR PART on 26th APRIL 2021