On 6 October 2010 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Conseil d'État (decision no. 341827 of 6 October 2010) on behalf of IMNOMA, raising the conformity of paragraph IV of Article 43 of amending Act no. 2004-1485 of 30 December 2004 of finances for 2004 with the rights and freedoms guaranteed by the Constitution.
THE CONSTITUTIONAL COUNCIL,
Having regard to the Constitution;
Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning organic law on the Constitutional Council;
Having regard to the General Tax Code;
Having regard to the fiscal procedures register;
Having regard to the Regulation of 4 February 2010 as to the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;
Having regard to the Conseil d'État's decision no. 230169 of 7 July 2004;
Having regard to the observations of the Prime Minister, registered on 29 October 2010;
Having regard to the observations of SELAFA CCPE, firm of Attorneys at the Paris Bar, for the applicant, registered on 29 October 2010;
Having regard to the documents produced and appended to the case files;
Having heard Esq. Pierre Beauvillard for the applicant company and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 30 November 2010;
Having heard the Rapporteur:
Considering that paragraph IV of article 43 of the aforementioned Act of 30 December 2004 provides: “Without prejudice to final judgments and the application of the provisions of the second, third and fourth subparagraph of 4 bis of article 38 of the General Tax Code, tax established before 1 January 2005 or decisions regarding contentious claims presented on the basis of the second subparagraph of article L. 190 of the registry of fiscal procedures are deemed normal provided that they are contested with a plea that the taxpayer had the capacity to request the correction of entries on the opening balance sheet for the first non-mandatory exercise. However, such tax is only subject to late-payment interest”;
Considering that, according to the applicant company, these provisions fail to have regard for the principle of equality before taxation, the principle of equality before the law, the principles of non-retrospective application of the law and of legal security, as well as the rights of defence and the right to an effective judicial remedy;
Considering that article 16 of the Declaration of the Rights of Man and the Citizen of 1798 provides: “Any society that does not guarantee rights or the separation of powers has no Constitution”;
Considering, in consequence, that if the legislator can modify a rule of law or validate an administrative act or private right retroactively, it is on condition of pursuing an objective of sufficient general interest and respecting final judgments and the principle of non-retroactivity of penalties and sanctions; that, moreover, the amended or validated act must not fail to have regard to any rule or constitutional principle, unless the general interest being pursued is itself of constitutional value; and, finally, that the scope of the modification or validation must be strictly defined;
Considering that, in the aforementioned decision of 7 July 2004, the Conseil d'État judged, after having cited article 38 2. of the General Tax Code, "that when taxable profits of a taxpayer have been determined in application of these provisions, the errors or omissions that call into question the reliability of the account entries identified in the closing balance for an accounting year or tax year and that lead to an underestimate or overestimate of the net assets of the business may, at the initiative of the taxpayer who has involuntarily committed such errors, or at the initiative of the administration exercising claw-back, be amended in this balance sheet; that the same errors or omissions, if it is found that they are included in the account entries for other accounting years, must be corrected symmetrically in that document, provided that they are not the result of a deliberate act by the taxpayer invoking them, and provided that all or part of these accounting years are covered by the mandatory requirement provided in particular in articles L. 168 and L. 169 of the Registry of Fiscal Procedures”; that this decision has consequently enabled, at the initiative of the taxpayer or of the administration, to "correct balance sheets symmetrically" with regard to non-deliberate errors or omissions that call into question the account entries identified in the closing balance of an accounting year, without application of the principle of intangibility of the opening balance for the first non-mandatory account year;
Considering that paragraph I of article 43 of the Act of 30 December 2004 has restored this principle of intangibility under certain conditions for the future; that this provision applies as a result of paragraphs II and III of the same article to accounting years closed at 1 January 2005 and to tax amounts established from that date onwards; that, however, paragraph IV validates the tax amounts established before this date, as well as decisions on claims, insofar as they will be contested by the taxpayer with regard to that point; that it follows that the legislator has reserved the State's faculty to avail itself of the aforementioned jurisprudence for tax amounts determined before 1 January 2005;
Considering that the contested validation deprives the only taxpayer of the aforementioned jurisprudence retroactively; that the negative effect on the balance of rights of the parties fails to have regard to article 16 of the Declaration of 1789; that, thereafter and without need to examine other grievances, it is appropriate to declare paragraph IV of article 43 of the Act of 30 December 2004 contrary to the rights and freedoms guaranteed by the Constitution;
Considering that the second subparagraph of Article 62 of the Constitution provides: “A provision declared unconstitutional on the basis of Article 61-1 is repealed on publication of the decision of the Constitutional Council or at a later date stipulated in the decision. The Constitutional Council determines the conditions and limits within which the effects of the provision are a matter for contestation”; that the present declaration of unconstitutionality takes effect from the date of publication of this decision; that it may be used in the instances current at this date and whose outcome depends on the application of the provisions declared unconstitutional,
Article 1: Paragraph IV of article 43 of the amending Act no. 2004-1485 of 30 December 2004 on finances for 2004 is declared contrary to the Constitution.
Article 2: The declaration of unconstitutionality of Article 1 shall take effect on the date of publication of this decision in the conditions set down by its recital 8.
Article 3: This decision shall be published in the Journal officiel of the French Republic and notified in the conditions provided for in Section 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.
Deliberated by the Constitutional Council in its session on 9 December 2010,sat on by : Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr. Guy CANIVET, Mr. Michel CHARASSE, Mrs Jacqueline de GUILLENCHMIDT, Mr. Hubert HAENEL and Mr. Pierre STEINMETZ.
Announced on 10 December 2010.
Official Journal of 11 December 2010, p 21712 (@ 83)