Two decisions of the Swiss Supreme Court illustrate the tax challenges that Swiss residents may face when holding interests in French SCIs that are not subject to French corporate income tax. The characterization of these entities differs between France and Switzerland, raising questions regarding the allocation of taxing rights over both the ownership interests themselves and the income derived from them.
In a ruling dated 13 December 2022 concerning wealth tax, the Swiss Supreme Court held that SCI interests must, from a Swiss tax perspective, be treated as movable assets. As a result, they may form part of a taxpayer’s taxable wealth in Switzerland, subject to the provisions of the French-Swiss Double Tax Convention governing income and wealth taxes (the “Tax Treaty”).
The second ruling, issued on 5 June 2024, concerns income tax and relates to a French agricultural landholding entity (groupement foncier agricole), which, like an SCI, is a form of French société civile. The Court acknowledged that France generally has taxing rights where income is derived from real property situated in France. However, it also required the taxpayer to demonstrate that the relevant income had actually been taxed in France; failing such proof, Switzerland may assert its own taxing rights.
These decisions highlight three distinct issues that must be considered separately: the characterization of an SCI under Swiss law, the allocation of taxing rights under the Tax Treaty, and, in certain cases, proof of effective taxation in France.
SCI Interests May Be Taxable in Switzerland
The first difficulty concerns the characterization of the SCI itself. In France, an SCI that is not subject to corporate income tax is subject to a tax regime under which its income is taxed at the level of its partners. Swiss tax law, by contrast, adopts a more formal approach: a Swiss-resident partner is not regarded as directly owning the French real estate, but rather as holding shares or partnership interests in the SCI.
This distinction is particularly significant for wealth tax purposes. Real estate directly owned abroad is generally not subject to Swiss wealth tax as such, although it may be taken into account for rate progression purposes. The situation may differ where the property is held through an SCI: because the interests are regarded as movable assets, they may be taxable in Switzerland unless the Tax Treaty allocates taxing rights to France.
A particular difficulty arises where the property is not effectively subject in France to the property wealth tax (impôt sur la fortune immobilière (IFI)), notably because its value remains below the EUR 1.3 million threshold for liability. In such circumstances, the absence of effective taxation in France may lead Switzerland to consider that its right to tax the SCI interests as an element of wealth remains intact.
The risk may also take the form of economic double taxation. Certain debts owed by the SCI to its partners, for example, are not deductible for French tax purposes and may be added back into the IFI tax base. At the same time, the corresponding receivable held by the partner may be subject to Swiss wealth tax. The same economic reality may therefore be taken into account for tax purposes on both sides of the border.
Income and Distributions: Reconciling French and Swiss Tax Rules
The issue presents itself differently in the context of income taxation. Under Swiss law, an SCI is generally regarded as a legal entity. Consequently, income generated by the SCI is not, as such, immediately taxable in the hands of a Swiss-resident partner. As a matter of principle, Swiss domestic tax law may treat such income as a dividend only when it is distributed.
However, the analysis does not end with this characterization. It is also necessary to determine which State is granted taxing rights under the Tax Treaty. Thus, where distributed amounts correspond to income derived from the rental or use of real property located in France, Article 6 of the Tax Treaty generally allocates the taxing right to France.
This is where Article 25B of the Tax Treaty becomes relevant. For certain categories of income or wealth connected with France, exemption in Switzerland is conditional upon the taxpayer being able to demonstrate that the relevant item has been taxed in France. The Swiss Supreme Court interprets this provision as an “effective taxation clause”: where France does not actually tax the item concerned, Switzerland may refuse the exemption and tax it itself.
Questions of evidence therefore become particularly important. A Swiss taxpayer must be able to establish the origin of the amounts distributed. In the absence of sufficient traceability, the Swiss tax authorities may be inclined to treat the distribution as a taxable dividend in Switzerland. The risk therefore depends largely on the taxpayer’s ability to document both the French source of the income and, where required, its taxation in France.
Article 25B does not, however, apply to every situation. It is not a general provision allowing Switzerland to tax any French-source income that has not been effectively taxed in France. Its application is limited to the circumstances covered by the relevant provisions of the Tax Treaty.
Capital Gains: Is the Absence of French Taxation Sufficient?
Real estate capital gains clearly illustrate the limits of the requirement for effective taxation in France. Such gains may be exempt from French taxation, notably after a holding period of 30 years or, in the less common case of a Swiss resident, where the property qualifies as the taxpayer’s principal residence.
In our view, the Tax Treaty reserves to France the right to tax real estate capital gains realized through a French SCI that is not subject to corporate income tax. The fact that such a gain is ultimately not taxed in France should therefore not, in itself, be sufficient to allow Switzerland to tax it, as Article 25B does not necessarily apply to such gains.
The same argument can be made for other categories of income generated by the SCI, including financial income. Where such income falls within the French tax treatment applicable to the SCI and its partners, its subsequent distribution should not, in principle, trigger a second layer of taxation in Switzerland.
Free Use of the Property: Two Different Approaches
A final scenario, frequently encountered in practice, illustrates the difficulties that can arise from the interaction between the French and Swiss systems: an SCI making property available to its partners free of charge, for example as a family holiday residence.
In France, the gratuitous use of property by partners is an accepted and regulated practice. It may even correspond to the very purpose of the SCI, which is under no obligation to generate taxable rental income.
The Swiss analysis may differ. The tax authorities could consider that, by foregoing rent, the SCI confers an economic benefit on its partner. Such benefit could then be characterized as a taxable benefit (prestation appréciable en argent) and treated as a dividend in kind taxable in the hands of the partner.
This approach, however, effectively recognizes a purely notional income, as if the SCI were necessarily intended to rent out the property. Such a legal fiction appears questionable where the company’s purpose and actual practice are precisely to allow partners to enjoy the property free of charge. A case-by-case analysis therefore appears indispensable.
Continuing Uncertainties
The Swiss Supreme Court’s decisions of 13 December 2022 and 5 June 2024 provide valuable guidance on the Swiss tax treatment of French SCIs, without resolving all outstanding issues.
They confirm, in particular, that Switzerland may characterize SCI interests according to its own tax principles and that treaty exemption may, in certain circumstances, be made conditional upon proof of effective taxation in France. That requirement should not, however, be extended beyond the situations expressly contemplated by the Tax Treaty.
The interaction between the two systems therefore remains capable of generating uncertainty and, in some cases, economic double taxation. The characterization of income and wealth, their treatment in France, and their traceability must consequently be examined with particular care. Comprehensive documentation evidencing the origin of distributions and the tax treatment applied to them remains essential in this regard.
Only under these conditions can the risks of double taxation addressed by the French-Swiss Tax Treaty be effectively avoided.
Jean-Luc Bochatay
Partner, Geneva
Family Estate Law (Head of practice)
