FEELS LIKE HOME

September 2015

Feels Like Home is the second album by jazz-pop singer-songwriter Norah Jones, released in 2004. I have written many times about feeling at home in a foreign country, as well as going back to the country of citizenship where one grew up decades before, and not feeling at home anymore.

This issue mostly deals with changes in the law due to a European Union court decision regarding what is linked or not linked to "home"; or what is in legal jargon is referred to as the primary residence. This ruling also affects what is a French fiscal resident.

I stayed home in Paris the entire month of August, while everybody else went away. It is always an interesting experience being in such a busy city suddenly slowing down, invaded by tourists. On occasion I felt like a tourist myself.

The changes mentioned in this issue, especially those regarding the domicile, may at first seem minor. But their consequences are long reaching, affecting areas one would never thought of.

French real estate ruled by American estate law means that there is no need to create sophisticated corporate schemes to keep French properties under American estate law. Some people might see their business affected by that. In any case, this simplification is excellent news for people who want to buy real estate in the EU for leisure purposes. For once there is actual good news for them!

INTERNATIONAL ESTATES HANDLED DIFFERENTLY AS OF AUGUST 17th 2015
This seemingly minor change has consequences, that are enormous for non-French residents who own real estate in France. I need to explain the old rule in order to underline how radical this change is.

Before the change, all liquid assets in an estate were governed by the laws of the country of the decedent's residence and all real estate by those of the country of the property's location. This meant all US citizens owning a leisure residence in France had to bear in mind, when considering this property in their estate planning, that in France one cannot disinherit one's children or spouse. The only way the French property could be governed by US estate law was to create a corporation, either French or foreign, and deed the property to it; the shares in this corporation were part of the liquid assets, and that was the only way to circumvent French law. The same went for American citizens who lived permanently in France and owned real estate in the USA: American estate law applied to such properties.

Now, as a result of a change in EU law, the entire estate is governed by the law in which the decedent legally resided at the time of death.

I want to illustrate this notion of legal residence to make sure it is clear. A foreigner dying of a heart attack inside the Roissy-Charles de Gaulle Airport is not a French resident at the time of death. Nor is a foreigner who happens to die anywhere else in France while on vacation or business.

I will be very interested, though, to see if the rule regarding residency for the purpose of estate law is modified as a result of this EU regulation. For example what is the residency of a retired American citizen who does not hold any type of French immigration status but who spends exactly six months in France in two stays of three months each, and who has owned at least one piece of real estate in France for several consecutive years?

One reason the French administration may be tempted to define French residence broadly is the existence of liquid assets in the USA that will now fall under French law. One can easily see the need to seek the help of an expert in such matters, since France is reluctantly implementing an EU regulation. The question of how to define a primary residence will ultimately be settled at the international level, though it could be a very long time before a definitive ruling is made.

EU regulation 650/2012 of the European Parliament and European Council of July 4th 2012, effective as of August 17th 2015

MATERNITY LEAVE AND OTHER OFFICIAL TYPES OF LEAVE OF ABSENCE
French labor laws are often seen as incongruous by many. But foreigners who have been employed in France long enough see the benefits, not just the downsides. This is not to say that no American employer would ever grant similar benefits. The key difference here is that France makes the law and it is up to the employee to take advantage of it or not. American employers offer such perks as a way to please employees and consider the extra cost worth it to attract good workers. This attitude used to be quite common in the USA, both for blue-collar and white-collar workers. Today, the employer-employee relationship in the USA has considerably changed, with the salary and benefits too often seen as just part of production costs. There the difference has become even more striking. The legal nature of paid leave here is that it is not counted as vacation, but the employer does pay the employee for these days, even though no work was done. Maternity leave, which lasts at least sixteen weeks - six before the delivery and ten after - differs in this respect since the national health insurance pays instead of the employer.

Here are some notable examples of the types of leave of absence granted in France:

  • – Four days for your wedding, whether it is the first one or a subsequent one,
  • – Four days for registering your civil union (pacte civil de solidarité), which shows that the PACS is now treated almost like marriage,
  • – Three days for the birth or adoption of your child,
  • – Two days for the death of your child, your spouse or your civil partner,
  • – One day for your child's wedding,
  • – One day for the death of one of your parents, siblings or parents-in-law.

It is interesting to see that more days are given for a wedding than a funeral.

As noted earlier, maternity leave lasts about four months, much longer than other types of leave of absence. Several parts of the French administrations get involved once a woman finds out she is pregnant. The doctor issues a document for the Caisse d'Allocations Familiales attesting to the pregnancy. Today the remit of the CAF is far broader than family well-being and it has become the main provider of French subsidies. The mother-to-be will receive some state money starting in the third month of pregnancy and continuing until the third month of the child's life, as long as she goes to the doctor regularly and gets the relevant forms properly filled out. This is a very good way to make sure that prenatal care is well done.

Sometimes the doctor will put the mother on sick leave the last months of the pregnancy. French regulations require the woman to stop working six weeks before the delivery date and remain off work until the child is about three months old.

The mother can choose to stay home up to three years while receiving a supplemental subsidy from the CAF, and the employer must give her job back to her whenever she wants to go back to work, even she takes the entire three years.

This arrangement is part of a bigger picture including public infant daycare and access to preschool starting when the child is three.

Another benefit is that the father, like the mother, can take paternal leave of absence for up to three years. It is not very widely used, but the mentality is changing.

THE DEFINITIVE EXEMPTION OF NON-FRENCH INCOME FROM CSG AND CRDS
CSG and CRDS are taxes imposed on all income earned in France. For earned income they are collected as part of the social charges, either mentioned on the employee pay slip or included in the social charges for self-employed people. For all other types of income, notably investment portfolio income, the tax office sends a CSG-CRDS bill after all income is declared and the amount of taxes has been calculated.

The tax office has not taken into consideration the situation of foreign unearned income and has issued tax bills related to CSG-CRDS on such income. It was always possible to contest the bill and eventually have it declared void. But many people did not know this and assumed that they had to pay it.

The European Court of Justice ruled on February 26th 2015 that in so acting, the French tax office was illegally collecting money that was not owed and was defrauding people. The French government should reimburse these taxes, and one would hope that the software used to calculate them will be modified so it can take into consideration the origin of unearned income.

A NEW CARTE DE SÉJOUR HAS BEEN CREATED
Normally I wait until pending legislation has been passed and we have a track record at the prefecture before saying anything about new procedures. But it is quite possible that the prefecture will implement this law right away, in which case people could be taken by surprise. Therefore I prefer to talk about it even though the legislative process is not yet finished.

The Interior Minister has said that, for many foreigners living in France renewing the same «  carte de séjour » every year is a waste of time for both the applicant and the prefecture. The message we are getting is that the new type of card should be available much sooner than the carte de résident, which is available after five years of presence in France and is valid for ten years. This new card should be a lot easier to get and would last two to four years  so, close to the three-year card that already exists for the expat salarié en mission and for compétences et talents, for example.

My concern is that the prefecture systematically tends to harden the requirements and apply the strictest possible interpretation of the provisions in a given law. Therefore I see it as highly possible that for these new cards the prefecture will apply requirements close to those for the carte de résident, arguing that the law requires a stable lifestyle and adoption of French values.

These are exactly the provisions voted by the Assemblée nationale on July 21st:
"assiduité et du sérieux de sa participation aux formations prescrites par l'Etat dans le cadre du contrat d'intégration"
Being serious and eager to attend the courses demanded by the administration as part of the integration contract signed when first arrived
ne pas avoir "manifesté de rejet des valeurs essentielles de la société française et de la République."
Not having shown any rejection of essential French values and the ones inherent the French republic

Other provisions seem a lot more straightforward and should be easily implemented as they require hardly any interpretation:

The spouse as well as the child of a French citizen would get the carte de résident after three years living in France (donne de plein droit au bout de trois ans pour les parents d'enfants français ou les conjoints de Français).

A new status called passeport talent, lasting four years, would replace the current cartes de séjour artistique, scientifique and compétences et talents ( passeport-talents , de quatre ans, qui remplacera la multitude de titres existants pour les étrangers qualifiés ou ayant une compétence particulière (artistes, scientifiques, sportifs).

This is far from a fait accompli. The legislative process is not over. The Sénat still needs to vote on it, and a conservative majority controls it. Therefore a lot could happen, and the result once the legislative process is over could be very different from what is described above.

There may also be a change in the political refugee procedure in an attempt to have it completed within a year and a half. This good intention might not be good news to the political refugee seekers as it is a lot easier to deny a request than to approve it. We will watch carefully to see what happens with the OFPRA procedure.

More information (in French) is available at  www.lemonde.fr/immigration-et-diversite/article/2015/07/22/l-assemblee-adopte-le-titre-de-sejour-pluriannuel-pour-les-etrangers_4693094_1654200.html

TAX OWED ON 2014 INCOME IS DUE SEPTEMBER 15th
The income tax payment schedule in France has three notable dates each year: February 15th, May 15th and September 15th. The system is set up so that on each of these dates, people pay part of the total tax due, usually in three approximately equal instalments. The first two payments are each equal to one-third of the taxes owed the previous year, since the tax collection agency, the Trésor Public, does not know the amount for the current payment year until it is notified by the Centre des Impôts, which receives the income declaration of the previous calendar year in the spring. There is a special office in the Parisian suburb of Créteil for residents of Paris. It used to be that these two divisions of the French fiscal administration had different locations. Today they all share the same buildings, but they still function as separate entities.

THE LINK BETWEEN THE FRENCH INCOME DECLARATION, THE TAXE D'HABITATION AND RENTAL INCOME TAXATION
The income tax declaration requires information about your primary residence; you must state whether you are the owner, a tenant or a guest. There is also a section to be filled out if you moved during the previous or current year. The fact that half of the front page is dedicated to the address shows how important this matter is to the tax office. Among other things, it enables tax officials to levy an appropriate taxe d'habitation(local tax) as well as what is called the -French TV tax- la redevance audiovisuelle in the autumn. A consequence very often neglected by renters is that filing an income declaration in France triggers the issuance of the taxe d'habitation and also the taxation of the rental income the landlord receives. There are so many dubious unwritten leases, sub-leases, cash rental arrangements and so on in Paris and probably other major French cities that many renters get into serious trouble with their landlord over having declared their income. This aspect of things is always overlooked unless a professional identifies the problem. It should not prevent people from doing the right thing, but it helps them get ready for the attack, which too often occurs after the landlord receives a summons to pay taxes on undeclared rental income, along with the associated fines and other penalties. One way of knowing where you stand is whether you paid the taxe d'habitationbefore you declared income for the first time. If you did, then there is no danger. If you did not and you have lived in your current place for a couple of years or more, this is a sign that your landlord is paying this tax and hopes the tax office will ignore that he has a tenant there.


Best regards,
Jean Taquet

DISCLOSING CONFIDENTIAL FINANCIAL INFORMATION TO A FRENCH BANK

QUESTION

I am French and I have been living in the USA for decades. Recently I was asked by my French savings and loan, the Caisse d'Epargne, for a pay stub and even a copy of my US tax report! I am not borrowing money from the Caisse d'Epargne and I have no intention of giving them what I consider very confidential information. Do you have any advice for me?


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ANSWER

I am not sure that I can give good advice as to how to avoid giving a copy of these documents to the Caisse d'Epargne. I hope I can describe this complex situation involving the two countries without assigning blame. The situation you describe is the result of a combination of American and French legislation, which has badly compounded the problem.

Let's start with the French side. France's TRACFIN organization is one of the most severe anti- money-laundering systems I know of. It makes the bank manager criminally responsible if money laundering occurs in the branch. This puts huge pressure on the bank employees to check the origins of funds. This means that, yes indeed, the bank manager, through his staff, can ask you the origins of the money that ends up in the Caisse d'Epargne. This may mean asking how you make your money and how much you make. The best way for them to get this information is to ask for the income tax return. French banks do ask their clients living in France for this information, in certain cases it is mandatory. Whether you work or are retired, the income tax return tells how much money you have by looking at all types of income combined. Also, it is very important to remember that in France, the banks always receive salary payments, as wages cannot be paid in cash and French checks can neither be endorsed (except for deposit) nor cashed. Self-employed people are asked to show their tax identification to the bank to prove the origin of the money deposited. As you can see, this request that offends you fits into the bigger picture of what French banking is and which role the French administration makes banks play.

However, the French banking system has put some very good procedures into place to protect the interests of clients, which I find a lot more reassuring than the American banking system.

For example, nearly all French banks allow clients to wire money online as well as paying with a credit card online. These payments are secured by sending a text message with a special code to unlock the transaction. This way if your account is hacked, which can happen, no transaction can be made. The same procedure is used to approve a new bank account to which you can wire money. I do not know how the Caisse d'Epargne works, so I cannot tell you whether it operates the same way.

In any case, since you live in the USA, you cannot use this process. Once, when I was in the USA, I emailed my account representative, explaining the situation, and she approved a transaction. She clearly bent the rule, but she knew it was me and not a hacker!

So the very first thing to do is to get in contact with your account representative. I would start by calling her, maybe the next time you are in France, and make a point of setting up an appointment with her. The key thing here is to establish a relationship of trust.

You also need to keep in mind the US law called the Foreign Account Tax Compliance Act (FATCA) significantly increases the work that foreign banks have to do regarding clients who are American citizens, and also American residents. Therefore as soon as an American client gives too much trouble to a French bank, the accounts get closed because the French bank is being burdened by a significant increase in work with no possibility of passing the cost on. I have seen this happen several times to clients.

So, no, I do not have any suggestions to help with the situation. I just hope that my explanation has put this request into the proper context and helped you accept it.

The main consequence of obtaining the primary residence protection is the strict limitation of the landlord's rights. For example, in order to give you notice to vacate on the anniversary date (which requires a six-month notice), the landlord has only three possibilities to make it possible:

  • He wants to live there or wants his children to live there
  • He wants to sell the apartment untenanted, in which case you have the right of first refusal
  • The apartment needs so much renovation that you are better off moving to a different place.

Another consequence is that any rent increase is defined by a government ratio, the indice de référence des loyers. So, as you can see, the law will supersede some of the most critical provisions found in the secondary-residence lease once you establish that this is in fact your primary residence.

Another welcome consequence is the way you will need to prove your address at the prefecture. At first the lease might be enough, as it was signed less than three months before. After that, the homeowner's insurance policy will be the only document you have if the monthly payment of rent and charges includes everything, especially the basic utilities (gas and electricity). But once you have your avis d'imposition in your hands, you can challenge the landlord and put the utilities in your own name. Yes, it will mean that you are de facto increasing the rent more than what the law authorizes, but considering how important utility bills are as proof of residence, many people consider this to be worth it.

This evolution can easily be accomplished with a one-year rental contract that is renewed automatically. It is a tad more difficult with a non-renewable lease, since every year you are signing a lease that this is a secondary residence. That said, the abovementioned French tax documents prove that your apartment is your primary residence. It is just that the chances of the landlord having a massive fit regarding the change from secondary to primary residence are quite high. The only leases that will prevent this from happening are very short-term rental contracts, which are final because such contracts are never meant to allow the tenants to stay in the place past the end date of the contract.

This illustrates very well the power the tenant has in the relationship and therefore validates the landlords' fear that they will lose control over their apartments.

As for the substantial wait for an appointment, it depends on a lot of factors; my experience is that lately carte de résident holders get their renewal appointment several months after the date of request and the process of issuing the card also takes a long time. So be ready to hold a récépissé (periodically renewed) for up to a year. It might feel unsettling, and you might be anxious to get it over with, but there is no way I know of to speed up the process and the prefecture is good about keeping you documented. You have to trust the system, which means trusting the prefecture, if you want to go through this with some peace of mind.

DRIVING IN FRANCE WITHOUT A VALID LICENSE

QUESTION

I now live on the Riviera after being in Paris for several years. I have always kept my Michigan driver's license up to date and I thought that it was valid in France. Recently I was stopped by the police and they told me that I was driving without a license and this was a big deal in France. I panicked and expected a huge fine, to be taken to the police station a complete horror story. The policeman let me go, stating that this was a warning and I needed to shape up fast. I will try to go to Michigan in December to renew my license.


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ANSWER

In a few lines, you have illustrated very well the complexity of living in France. One of the most difficult things to get used to is the fact that there plenty of things that are illegal but with no consequences, while other actions are illegal, too, but the police do not seem to be consistent in the way they respond to them. Then there are acts that are legal but you should be careful because they could be misunderstood, and so on. The situation sometimes makes it difficult to predict what will happen, creating an environment of uncertainty that many foreigners have a hard time handling even when it goes their way.

The legal matter here is crystal clear: driving in France without a license that is valid in France is a felony, and anyone found guilty may be liable for up to one year of jail time and a 15,000 € fine, in addition to having their vehicle confiscated and auctioned off.

Clearly this is considered a very serious offense France. In the normal course of things, you would have been taken to the police station, had your car impounded and been given a court date.

I can only guess at the policeman's thinking. You showed him an up-to-date Michigan license, and it happens that Michigan is one of the US states that have signed the reciprocal agreement with France and so ordinarily one just has to go to the prefecture and exchange the Michigan license for a French one.

So, he must have asked himself, does your lateness in making this exchange mean you deserve such a harsh sentence for driving without a French license? Clearly he decided it did not, and rather than documenting your absence of license, with all the attendant consequences, he preferred to let you go. In some similar instances, some of my clients have been fined for lack of a valid license.

  • – For the inability to present a valid license right away, the fine was 38€.
  • – For the inability to present a valid license to the police within five days, the fine was 750€.

In those cases, too, the police did not apply the law, probably for similar reasons, and the brass were not surprised to see such a ticket being issued and no one coming to the station to present the proper license.

Foreigners have to get used to this way of functioning and, even better, feeling safe about it!

Now the problem remains, keeping your Michigan license up-to-date does not fix the problem. Because the exchange can only be done during the first year of residence, this cannot be done anymore considering how long you have lived in France. You must take and pass the French test through the auto-école system. This is often a very painful experience as it is very expensive (several thousands of euros) and is very often seen as very degrading for experienced drivers.

 

DISCLAIMER
Please forward this message to all those who would be interested in its contents. The information contained in this newsletter is intended only as general information. I strongly urge readers to seek professional guidance concerning the legal and tax matters mentioned. This newsletter is intended as a general guide and is not to be taken as professional advice.


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