When classifying different types of companies, it is customary to distinguish between entities with legal personality (so-called “opaque” entities) and those without legal personality (so-called “transparent” entities). “Opaque” entities are subject to corporate income tax at their own level, and any distributed profits are subsequently taxed in the hands of the partners. By contrast, “transparent” entities are not themselves taxable companies; instead, their partners are taxed directly in proportion to their share of the capital.
A French SCI is atypical in this classification, as it has legal personality while not being taxed at the entity level, but rather at the level of its partners. For this reason, it is described as “translucent”, halfway between transparency and opacity. It should be noted, however, that if the SCI elects to be subject to corporate income tax (an irrevocable option), it then becomes an “opaque” entity.
In a purely domestic French context, the translucency of SCIs does not create any difficulties: tax is calculated at the level of the company, which files its own tax returns; as for the partners, they are liable for the payment of tax as soon as profits are realized, even if those profits remain invested in the SCI.
However, subsequent distributions of profits are received by French partners free of additional taxation.
In an international context, where a French SCI has non-resident partners, the company’s highly specific tax regime may give rise to risks of double taxation.
Tax Treatment of Rental Income
Consider the case of a Swiss resident who is a partner in a French SCI owning rental property (assuming the SCI has not opted for corporate income tax and that the rental activity is not of a commercial nature, such as an Airbnb-type):
Under Swiss domestic law, the rental income derived by the French SCI is taxable exclusively in France. However, upon subsequent distribution of the profits, Switzerland taxes the amounts received in the hands of the partner, thereby giving rise to economic double taxation.
If the double taxation treaty between Switzerland and France on income and wealth taxes (the “Treaty”) applies, Switzerland must exempt such distributions, provided it can be demonstrated that the rental income has already been taxed in France (Article 25 B.1 of the Treaty). This principle was confirmed by the Swiss Supreme Court in a decision dated 5 June 2024 (9C_409/2023).
Cases of double taxation relating to real estate income are, however, likely to be rare, except where the partner receiving the distribution is not the same person who was taxed on the rental income.
Example: taxation in France of a partner (e.g., the father) in year N on rental income – retention of profits within the SCI – death of the partner (father) in year N+5 (children become partners) – liquidation of the SCI in year N+7 with distributions to the children.
Tax Treatment in the case of a free-of-charge provision
The civil nature of an SCI (provided it has not opted for corporate income tax) does not require it to generate profits from the assets it owns. Partners may therefore decide to make company property available for their own use free of charge, without any financial consideration. In such a case, no taxable income arises, but conversely, no expenses are deductible.
This situation is very common, particularly among foreign investors who purchase a private holiday home in France through an SCI with no intention of renting it out, and it is fully secure from a French tax perspective.
In a French-Swiss context, however, certain cantons consider that if an SCI provides a residence free of charge to a partner, this constitutes a benefit in kind qualifying as a “deemed monetary benefit” (prestation appréciable en argent), potentially subject to taxation in Switzerland; in our view, this approach is debatable.
Tax Treatment Upon Sale of the Property
While an SCI is often created to acquire and hold real estate, it will ultimately sell the property (as the transfer of SCI shares is generally less attractive to buyers in practice).
Capital gains arising from the sale of real estate located in France are always taxable in France, even where the sale is carried out through an SCI.
Under French tax law, real estate capital gains benefit from holding-period allowances, leading to full exemption from income tax after 22 years of ownership (and after 30 years for social contributions).
If an SCI sells a property held for more than 22 years and subsequently distributes the sale proceeds to a Swiss resident partner, how will this distribution be treated in Switzerland?
This question remains unresolved. In our view, there are strong arguments in favour of this distribution not being taxed in Switzerland, based on the Treaty and its specific provisions governing the tax treatment of income derived from a translucent SCI. It should be noted that Article 25 B.1 of the Treaty, which requires prior taxation in France (in order for the income to be exempted in Switzerland), applies only to certain categories of income, such as rental income, but not capital gains on the sale of real estate.
The future of SCIs in a French-Swiss context
A number of uncertainties remain regarding the tax treatment in Switzerland of SCI partners, whether in relation to wealth tax or, to an even greater extent, income tax.
If we add to this the fact that property assets located abroad and directly owned (in name) by Swiss taxpayers are not subject to either wealth tax or income tax in Switzerland (although they are taken into account when determining the tax rate), it is highly likely that this ‘vehicle’ for holding property will tend to disappear in the future.
For those who may still have doubts on this matter, it should be noted that the use by a Swiss tax resident of an SCI to hold a property in France is likely to result in double taxation in relation to inheritance and gift tax; whilst this may seem ‘secondary’ in the context of direct transfers (between spouses or to descendants) due to particularly low – or even zero – taxation in most Swiss cantons, the implications become far more significant when such transfers without consideration take place between more distant family members (siblings in particular) or between unrelated persons (such as cohabiting partners). For example, the siblings who are heirs of a taxpayer from the Canton of Vaud who owns a villa in France held through an SCI may have to pay inheritance tax on this asset amounting to more than 60 per cent of its value (depending on the market value of the villa on the one hand and the total value of the estate on the other).
That said, it should be borne in mind that there are still many Swiss taxpayers who are partners in SCIs (including French residents who have emigrated to Switzerland) for whom the key issue is – or will be – to analyse, on a case-by-case basis, the options available for adjusting the current ownership structure in order to secure their tax position.
Jean-Luc Bochatay
Partner, Geneva
Family Estate Law Head of practice
&
Alain Moreau
Partner, Paris
Tax Law Head of practice
