The new definition of abuse of rights: its impact on the transmission of property
The notion of abuse of rights was broadened by the 2019 Finance Act. Previously, only transactions with an exclusively tax purpose were concerned, i.e. the sole purpose of the transaction was to reduce or evade tax. The 2019 Finance Act now includes operations that have a mainly tax purpose. This nuance is particularly important in the case of the transfer of assets (donations for example), because even if the main objective remains the transfer to his descendants, there is a tax dimension since in the case of a reserve of usufruct, upon the death of the usufructuary, the bare owner automatically becomes the owner of the property without paying any additional fees. The tax administration wishes to facilitate its controls and avoid fictitious transmissions aimed at evading tax. It is not a question for the administration to prevent the mechanisms for the transmission of assets but to limit their abuse and to eliminate certain niches. For example, a person who gives bare ownership of his property to his child only a few months before his death and knowing that he is ill would be a new case of abuse of rights because the only purpose would be to avoid inheritance tax. The administration could consider this donation as fictitious. It will have been understood that the purpose of the reworking of this old concept in legal language is to allow for better control by the tax administration.