Withholding tax exemption for UK CIVs in a post Brexit context

In brief

The French tax authorities (“FTA”) have recently published in a Brexit FAQ their views on the procedure by which a Collective Investment Vehicle (“CIV”) incorporated under UK law can rely on the exemption from withholding tax on dividends received from French entities, in a post-Brexit context.

Reminder on the current legislation

Article 119 bis 2. of the French Tax Code provides for an exemption of withholding tax (“WHT”) on dividends paid by French companies subject to corporate income tax[1] when the beneficiary of those dividends is comparable to a French CIV.

Such exemption is available for CIVs established in an EU country, as well as for non-EU CIVs established in a State or territory which has concluded an agreement on mutual administrative assistance with France in order to combat fraud and tax evasion.

In practice however, the procedure to obtain the exemption differs.

Indeed, while eligible EU CIVs can obtain an exemption at source by sending a "BOI 000037" form to the French paying institution before the payment of the dividends, this procedure is not open to eligible non-European CIVs, which must necessarily and first file a request with the tax authorities assessing their comparability with French CIVs and aiming for a refund of withholding taxes wrongly levied. 

It is only after having obtained a refund in this respect that the non-EU CIV will be presumed to be comparable and will then be able to apply for an exemption at source by filing a "BOI 000089" form with the French paying institution. This statement will be valid for each distribution made between the date of the withholding tax refund decision and 31 December of the second year following the said refund decision.

What changes for UK CIVs

UK CIVs set up as from 1 January 2021 and UK CIVs set up before 1 January 2021 but not benefiting from a WHT exemption before that date

As from 1 January 2021, CIVs subject to UK law are likely to benefit from the withholding tax exemption provided for by French domestic law as CIVs subject to the law of a non-EU Member State which is bound to France by an administrative assistance agreement to combat fraud and tax evasion. 

The regular claiming procedure applicable to non-EU CIVs should therefore be the rule (i.e. introduction of a formal reclaim) although the FTA do not specifically elaborate on this in their FAQ replies.

UK CIVs benefiting from a WHT exemption before 1 January 2021

A lighter regime applies if the UK CIVs have already benefited from an exemption of withholding tax before that date

Indeed, in their FAQ replies, the FTA authorize these funds to continue to benefit from the exemption at source by drawing up a "BOI 000089" form containing a declaration on honor that they continue to meet all the conditions required to remain exempt from withholding tax.

Thus, unless there is a change in the legal situation of the UK CIV after 1 January 2021, it will be able to continue to benefit from a withholding tax exemption without having to first go through the refund procedure imposed to non-EU CIVs.

A second point is made on the situation of UK CIVs which benefited from a withholding tax exemption before 2021 but have nevertheless suffered a levy during the first months of the year 2021 

 In this case, UK CIVs may obtain a refund from the French paying institution by providing the latter with a "BOI 00089" form duly completed. The paying institution could subsequently proceed with the refund by way of an imputation on potential future WHT liabilities or by way of reimbursement.

 Although the justifying documentation is not requested per se when filing the "BOI 00089" form, the paying agent and managers of the CIVs should ensure this documentation could be obtained upon first demand from the FTA.^.

Takeaway

The comments of the French tax authorities draw the consequences of Brexit while providing a practical approach to the situation of UK CIVs for which comparability had previously been recognized.

It is nonetheless worth noticing that the above is only an option offered to UK CIVs which remain entitled to file a regular reclaim to manage their refund procedures.

[1] Except for dividends paid by certain real estate entities where a 15% withholding tax still applies (e.g. SIIC or SPPICAV)