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The ministerial replies on tax

Article

French

ID: <10670/1.gwe9yy>
Disciplines

Abstract

Ministerial replies on tax matters constitute a separate category of administrative acts. A number of specific features distinguish them from other ministerial replies. In principle, a citizen is not entitled to such a response or to the administration’s interpretations of general application. However, there is a provision in tax law that allows such texts to be used – Article L. 80 A of the French Tax Procedure Handbook, which establishes a guarantee against changes in the tax authority’s doctrine. The Council of State has ruled that, under certain conditions, ministerial replies given on tax matters fall within the scope of this Article, and can therefore be invoked. In this respect, ministerial replies on tax matters are the same in nature as invocable tax doctrine. They constitute a specific category of acts that create rights, as taxpayers have the power to require the tax authority to comply with the instructions of general application contained in its doctrine if they appear advantageous.The basis for including ministerial responses in the scope of tax doctrine is not clearly defined. By conjecture, it can be linked to the history of the provisions of Article L. 80 A of the French Tax Procedure Handbook. With a view to strengthening consent to taxation, the idea is to force the authority to respect the commitments it has made before Parliament.This invocability explains the distinctive characteristics of the litigation regime of ministerial responses on tax matters. Unlike other ministerial replies, they can be appealed on the grounds of misuse of power. For this appeal to be admissible, however, the contested response must include an interpretation of a tax text that can be invoked under Article L. 80 A of the French Tax Procedure Handbook, i.e., it must "add to tax law". This leads the judge to return to a line of reasoning that was thought to have been abandoned: that of the Institution Notre-Dame-du-Kreisker ruling (Council of State, 1954), since admissibility depends on an examination of the merits of the appeal, with responses that add to tax law being, by definition, made by an authority lacking jurisdiction.With only six contentious appeals against ministerial replies, of which only one resulted in a contentious annulment, this legal remedy is only rarely used and presents essentially virtual possibilities. It must be acknowledged that the sophistication and originality of the regime of ministerial replies on tax matters is not sufficient to establish the usefulness of this complex mechanism. Other legal tools, such as the publication of interpretations of general application in the Official Bulletin of Public Finance (BOFiP), and the rescrit`renvoi id="re1no1" idref="no1" typeref="note"b*`/renvoib, more effectively and securely fulfil the purposes assigned to this particular category of ministerial responses.

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