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French Supreme Court Upholds Decision that Company Benefiting from Tunisian Export Exemption Qualifies as Resident for Tax Treaty Purposes — Orbitax Tax News & Alerts

The French Supreme Administrative Court (Conseil d'Etat) issued a decision on 2 February 2022 concerning whether a company benefiting from export incentives in Tunisia may qualify as a resident of Tunisia for the purpose of the 1973 France-Tunisia tax treaty and, therefore, qualify for treaty benefits.

The case involved a Tunisian export company that benefited from an incentive allowing it to deduct all foreign-source profits from their taxable result for a 10-year period. In 2013 and 2014, payments were made by a French company to the Tunisian company, for which no tax was withheld. The French company withheld no tax because it determined that, as per the treaty, the Tunisia company did not have a permanent establishment in France and was therefore not subject to tax on the payments. The French tax authority, however, determined that because the Tunisian company had only derived export income in the years concerned and was exempt from tax on the income received, it could not be considered a resident of Tunisia for the purpose of the treaty. As a result, it could not benefit from the exemption from tax provided by the treaty. This position was initially upheld by the Administrative Court of Paris in 2018 before being appealed to the Administrative Court of Appeal.

In the decision of the Administrative Court of Appeal, issued in 2020, the tax authority's position was rejected. The Court found that although the Tunisian company was exempt from tax on foreign-source export income, it remained taxable on its domestic-source income (despite having no domestic-source income). As such, the company may be considered a resident of Tunisia for the purpose of the tax treaty and may qualify for an exemption on the payments from the French company. This was appealed, with the Minister for the Economy, Finance, and Recovery asking for the decision to be set aside. In its decision, the Supreme Administrative Court agreed with the lower court's decision, finding that there was no justification for that decision to be set aside.