Overseas Chambers of Peter Harris

Maison de la Boucterie
Rue de la Boucterie
Saint Saviour
Jersey, JE2 7ZW

26. The French tax on Digital undertakings needs to be checked carefully by Crown Dependency businesses.

September 18th 2019

La loi relatif à la taxation des grandes entreprises du numérique was enacted by France on 24th July, 2019 prior to the adoption of any uniform OECD or EU initiatives in the area. France decided not to await the introduction of the European Commission's proposal for a directive, as distinct from a regulation (COM/2018/148) as that would take considerable time. The tax is supposed to be a temporary imposition, but as with most taxes, a Government's initial declaration of intent is less than reliable.

It is in force, and the first tax date by which accounts of turnover have to be prepared is 31st December, 2019.

Where an undertaking  is subject to the tax, and the group's or company's structure is outside the EU and is not in a territory where there is a tax information exchange agreement coupled with a functioning assistance and recovery agreement, a fiscal representative resident in France has to be appointed. A failure to do so will be subject to penalties, an immediate investigation and taxation calculated on whatever information that the French administration can muster.

Neither Guernsey nor Jersey have an agreement in place with France which permits France to recover tax assessed and due. The TIEAs do not contain any such provision, and were never negotiated on the basis of assisting the French tax administration to recover any tax assessed.

Channel Island trust companies involved in corporate administration and management, their accountants, auditors and compliance directors will need to check whether and if so to what extent any undertaking sunder management is brought into the scope, of the French tax.

It does not simply address Google, Amazon and Facebook. Nor does it simply bring AliBaba into eth shearing fold. Any business whose webpage can be accessed from a mobile smartphone, telephone or computer in France could find themselves subject to the tax where the use of their Website is significant, and the turnover made in one calendar tax year sufficient.

What is more, Jersey Finance and the JFSC  will also need to consider whether their  respective rôle of informing representation and regulation have addressed this French innovation.

As a French trained TVA (VAT) lawyer, from the head office tax department of a then nationalised French mutltinational and previously a lecturer in French VAT at Saint Mary's College, London, I am well placed to advise on the scope and application of the tax from the French and also from the Crown Dependency context.

I can provide an immediate short executive summary setting out the structure of the tax and its implications for a fixed fee, which can then be fleshed out in further instructions can be considered after the summary has been consulted. Please contact Peter Harris on peter.harris@overseaschambers.com to take matters further.