Suspension of the new decree allowing public access to the French trust register

On July 22nd 2016, French Conseil d’Etat suspended public access to the trust register.

The executive decree of May 10th 2016, completed by a budget order of June 21st 2016, set forth that the trust reg-ister was to be accessible on June 30th 2016 and would be freely accessible online by anyone with an electronic identifier (see our May 30th Tax Alert).

This decision is the consequence of summary judgment plea filed a tax resident of France who had settled a trust in the US. Her grievance was that the register had revealed her testamentary intentions, exposing her to pressure.

Public consultation of the trust register is no longer possible.

Suspension of public access to the trust register

The French Conseil d’Etat concluded that the public disclosure of an individual’s testamentary intentions and the resulting pressure justified, first, the urgent nature of the decision for the plaintiff, and secondly, the argument based on respect for private life gave rise to doubts on the legality of the executive decree.
Hence, the French Conseil d’Etat provisionally suspended the executive decree of May 10th 2016 regarding the public access to the trust register.

Constitutionality set to be examined by the French Constitutional Council

Concerning the claim on compliance of this decree with the right to respect for private life, the French Conseil d’Etat referred the question to the French Constitutional council (“Conseil constitutionnel”). To date the French Constitutional council decision remains outstanding.

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The suspension of public access to the trust register does not justify any exemption from reporting the existence of the trust or the annual trust filing. Failure to report a trust is punishable by a fine of up to 12.5% of the trust assets.

However, we note that the French Constitutional council recently declared unconstitutional the 5% fine on the bal-ance of undeclared foreign accounts on the basis that it is disproportionate to the infraction of not reporting foreign accounts. Accordingly, there is reason to doubt the constitutionality of the 12.5% fine on undeclared trust assets.

The suspension of public access to the trust register is only provisional. Hence, our team recommends that one remain vigilant regarding potential access. While waiting for a definitive decision, our team remains at your disposal to analyze your situation.

Christina Melady

Christina Melady, Partner, has over 23 years’ experience practicing tax law in France and advises both companies and managers on personal tax matters. Christina created the specialized practice in France […]

Diane Artis

Diane Artis, Partner, has over 20 years’ experience in French and international individual income tax matters. She assists leading worldwide companies in French individual tax matters, including income tax consequences […]

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Alexis Fillinger

Alexis Fillinger has more than 11 years of practicing. He advises both companies and individuals on personal tax matters, in international context He is specialized in the structuring of investment […]

Nadia Hamya

Nadia Hamya, Partner, has acquired a strong experience in individual tax and international mobility matters. She regularly assists major French and foreign international companies with their international mobility policy, notably […]

Nicolas Meurant

Nicolas Meurant, Partner, has over 15 years’ experience providing advice to corporations and individuals in individual tax and Global equity area, in the structuring of shareholding schemes, as well as […]