One, two, three, what are we fighting for?

february 2019

First of all, I would like to wish all of you a very happy and prosperous 2019!
French custom dictates that New Year’s wishes can be expressed until the end of January,
so I have managed it a few hours before the deadline.

Joseph Allen “Country Joe” McDonald composed “The “Fish” Cheer/I-Feel-Like-I’m-Fixin’-to-Die Rag” in 1965, with its very familiar chorus (“One, two, three, what are we fighting for?”), which Country Joe and the Fish sang at Woodstock.

Sitting in Paris, following very closely what is going on in France and the USA, the question on my mind and on both sides on the ocean is: “Who is fighting for what?”

In the USA, there is fighting for and against “the wall”. In France, we have seen rioting on the most prestigious avenue in the country. There has been violence on both sides, with the police having the hardest time keeping control of the streets of Paris and most other major French cities almost every Saturday. Who are these people so faithfully demonstrating, and who is littering once the demonstration is over?

I have always liked the saying, “Pick your fight!” While it should never end in a fistfight, it defines a strategy that carries a lot of common sense.

Time will tell what will come of these situations. The USA will recover from the longest government shutdown in history, but it will be interesting to see who wins and who loses once life goes back to something more normal.

As for France, how can it get out of this situation of defiant grassroots opposition? Note that unions and political parties in France can organize public demonstrations in the streets very easily. This is even a topic for which the expat community makes fun of France. But in this case, none of the unions or parties have been able to organize a plan of action that enables them to become part of the normal scheme of things. In 1968, the CGT union, which was then controlled by the Communist Party, was able to take over the famous May demonstrations, and ended up obtaining a breakthrough in labor law, the Grenelle accords.

All the French leaders who matter give the impression of being numb in the current situation.

Later in this column I mention the Boston Tea Party. I started the column mentioning Woodstock and a song associated with the hippie movement and opposition to the Vietnam War.

As the song by Bob Dylan puts it, “The Times They Are a-Changin’ ” – this is obvious to everybody.

In the midst of all this, I would like to wish everybody Happy Valentine’s Day in an effort to lighten the atmosphere.

THE STRAW THAT BROKE THE CAMEL’S BACK – LES GILETS JAUNES
Journalists and commentators always like to analyze in detail the “little thing” that ignites a revolution, a rebellion, unrest and so on. It is often a minor thing, with little significance and meaning unless one retraces years and sometimes decades of whatever policy creates the conditions for major unrest.

The Boston Tea Party occurred on December 16th, 1773, at Griffin's Wharf in Boston, Massachusetts. It was spurred by the Tea Act of the previous May, which allowed the British East India Company to collect taxes in the American colonies.

The colonists argued that the British constitution did not allow “taxation without representation” – and the truth can be stated like this: “Yes, we live in a colony, but we matter – and we want a say in the rules that are governing us.”

The Boston Tea Party would never have taken place, and would not have led to the independence of the USA, if the underlying demand for representation in the British parliament had not been so strongly shared by the people living in the colonies that were soon to become the 13 original states.

The parallel I see is that the price of gasoline in France is mostly made up of taxes. The average price is €1.55 a liter, or about $6.75 a gallon. The USA would never accept such expensive gas – there would be riots everywhere. In France, however, one might think that increasing the tax yet again should not have led to the riots we have seen occurring in the streets of Paris. But underneath, there was some serious and long-lasting discontent on the part of the general population.

The famous French motto “liberté, égalité, fraternité” (liberty, equality, fraternity) is visible on all French public buildings. It has its origins in the 1789 French Revolution, and was institutionalized in the late 19th century. Through the centuries the French people’s perception of it and what it stands for has changed somewhat, yet it emphases the idea that there is unity and solidarity within the French nation. I would translate fraternité today as “brotherhood”. Since 1983, French conservative and liberal governments alike have implemented pretty much identical economic policies. Equality and brotherhood have been overlooked for decades, leading to increasing erosion of the foundations of the French nation.

There is a fundamental difference between the USA and France regarding this issue. In the USA, no one has any problem with some people becoming very wealthy and being conspicuous about it. The fundamental reason is that most people believe they, too, can become rich, as this is the American Dream: It is the land of opportunity, where the sky is everybody’s limit. This is of course more a belief than a reality, but it remains a foundation of the USA as a nation.

The French overthrew their king a few times to settle definitively for a republic because, among other reasons, they had this desire for equality and fairness, and trusted the government to protect them from the excessive desires of the wealthy and powerful. This is one reason the French government apparatus is so huge, and at one time or another has included many businesses, such as banks, car manufacturers, the postal service, the railroads, and so on.

President Macron was elected on the promise that his policies would be very different from those of his predecessors. One of his themes during the campaign was that he would put equality and brotherhood back into French politics while also having a conservative economic policy. Without listing all the reforms France has gone through during his presidency, it is clear that equality and brotherhood have never been part of his government’s policy. It is even more conservative than before, with what a lot of people have described as disdain for the working class and the poor. In other words, his “reforms” could have been those of any previous government. Indeed, he should have thought twice before getting rid of the wealth tax while French employees suffered a severe loss of rights. It was a tax increase on gas and diesel fuel that ignited the gilets jaunes revolt.

This is why I see a parallel with the Boston Tea Party, and I believe that it has a lot of merit. I have no idea where it will take the French nation. I very strongly doubt that President Macron will be ousted by a revolution. Short of that, I have no idea what the outcome will be. Clearly this is a political crisis that must be addressed very seriously, not by just delaying the tax increase – which, obviously, is not the problem in itself. It is just the straw that broke the camel’s back.

THE FRENCH BANKING INDUSTRY
A recent post on Stephen Heiner’s blog and a conversation we had gave me the idea of writing about the French banking industry. One reason it is becoming a topic of discussion among many foreigners living in France is that opening and using a bank account is pretty much a must if one is to retain French immigration status. Also, since cash transactions are increasingly rare, it has become virtually impossible to live in France without a French bank account.

One oddity of the French banking industry is that the savings and loans side accounts for about half of the global market, if not more. Many people do not know this, and foreigners have no reason to find out unless they do some research on their own. There are six major independent French financial institutions: Société Générale and BNP-Paribas, which are banks owned by shareholders, and Crédit Agricole, Crédit Mutuel, Caisse d’Epargne and Banque Populaire, which are savings and loans owned by their clients. All others either do private banking for the rich, are French branches of foreign banks, or are subsidiaries of one of those six institutions; there are a very few exceptions, including La Banque Postale, Crédit Foncier and a few others.

For better or worse, the industry as a whole has harmonized a lot of practices, the most obvious being wiring/withdrawal capacity and the use of debit cards.

The major difference I see between the French and American banking systems is that in France, the client hardly ever needs to meet with a bank employee; everything is done via machines (mainly ATMs to deposit and withdraw money) or online. One actually goes to the bank only in specific cases, such as asking for a loan, investing in stocks and mutual funds, and opening an account. A lot of criticism I hear about French banking is the absence of personal contact with the banker assigned to the client. But that assumes French banking is the same as in the USA or elsewhere, when it is not. To adapt easily to French banking, you should first find out all the services the machines offer, often in a room located outside the branch office itself, and usually open long hours, e.g. 7AM to 10PM. Then create an account online and learn about all the services offered on the website or app, knowing that one needs a French cell phone to use some of them, such as authorizing a credit card payment on a website or adding an account to wire money to.

Yes, as with so much else in France, a foreigner must learn how the French banking industry works, because it is so different.

The second part of this topic is finding a way to open a bank account in France. The reason it is so difficult at first is a compounding effect of a French regulation and an American one. The latter is called FATCA, which I have already discussed several times. For an American citizen, opening an account in France means the bank has to report to the IRS. There is serious liability if it does not do so, but reporting entails onerous paperwork for the bank. Thus, regardless of the balance you plan on leaving in your French bank account, your citizenship is a put-off for French banks. Nothing personal here – you can blame the IRS!

The French regulation is called TRACFIN, which I have also explained several times – the name refers both to the legislation fighting money laundering and the team of investigative inspectors enforcing it. The legislation makes every bank branch manager personally and criminally responsible for any money laundering and/or other criminal activities related to moving money in and out of bank accounts for which they are responsible. Any new client appears at first to be a potential liability until the bank is sure where the money comes from, how it was acquired and so on. Once the bank is reassured about this, the account is opened. This is why the file to open a French bank account often seems worse than the one for the prefecture, which is the benchmark for many.

FRENCH WELFARE AND PART-TIME WORK
All countries that have some kind of welfare system need to address a well-known problem. When a person goes off welfare and gets a job, it can happen that the amount of money they earn is less than they were receiving on welfare. This makes any “all or nothing” system counterproductive, so there is a need for some kind of transition to smooth the path back to working.

In France, most subsidies paid by the Caisse d’allocations familiales (CAF) are linked to the amount of income declared. When the Revenu de Solidarité Actif (RSA, originally called RMI for Revenu Minimal d’Insertion) was created, the problem was identified but poorly addressed. One person I help is paid twice a year because the number of hours they work is so small, and so they receive RSA at the same time. Since CAF demands to receive a quarterly declaration, such people often end up with close to zero income for half the year because a salary of about €1300 exceeds the limit. The system does not understand that this is not a monthly income but a semiannual one.

The problem has not been solved yet by CAF, but this person will be paid quarterly and should be able to maintain all the benefits of the RSA combined with their very small salary.

On the other hand, the prime d'activité created in 2016 replaced the failing system for people holding steadier jobs with very low salaries. The calculation is complex but the end result is easy to understand. It minimizes the consequence of earning income just above the limit in the calculation of the other subsidies and thus creates a real incentive to work more. Since it applies not just to employees but also to the self-employed, it helps people with erratic income, and it applies to everybody living in France, including carte de séjour holders under certain conditions. It shows that, in reality, continuing a tad longer to subsidize an individual is a better way to get them off welfare when they are ready. What puts people on a welfare program is often a complex story with several things happening more or less at the same time.

THE MARITAL REGIME FOR INTERNATIONAL COUPLES MARRYING AFTER JANUARY 29th 2019
Without going into too much detail, this issue concerns which rule of ownership is applied to an international couple, a matter that had been regulated by the Hague Marriage Convention of March 14th 1978. The couple could choose between the regime linked to their citizenship, the location of the wedding, and the country where they spent their first significant amount of married life.

A new European Union regulation states that such couples can now only choose between the countries of which they are citizens and that where they started their married life. The latter is chosen by default, and this rule covers the entire net worth of the couple, including assets – especially real estate – in other countries. That part is one of the major changes in the new regulation.

To put this in context: in 2015, 27% of the weddings celebrated in France were what was called mixed, because they involved spouses of different nationalities.

www.lemonde.fr/argent/article/2018/12/03/regimes-matrimoniaux-du-nouveau-pour-les-mariages-internationaux_5391775_1657007.html

SPLITTING PREROGATIVES IN THE FRENCH ADMINISTRATION
People who have been in France since before 2011 may remember the complicated French tax office reform when the billing-collection part was merged with the office calculating the amount of taxes owed. The root of the historic division between the two went back to Napoleon’s time and stems from a complete distrust of people: Ensuring that the person calculating how much must be paid is totally disconnected from the person collecting the amount due was a way to avoid attempted bribery of either party. Even today, when the two divisions of the tax office are located in the same building, they are physically as far apart as possible and there is next to no contact between them. Being physically closer has not destroyed the barriers created by the centuries!

This way of functioning is less and less common but has not completely disappeared. My readers have followed what feels like the endless saga of PUMA coverage, in which CPAM had delivered health coverage, and therefore reimbursements, all along while URSSAF stopped collecting premiums for two years and since December 2017 has sent invoices to people who are not covered by the system. Aside from the obvious screw-up by the French administration, this provides a very good illustration of the division of administrative processes.

Another that is not as well known is for the independents, the necessity of registering with net.entreprise.fr to declare and pay social charges (the Social Security side of what is owed) and the chosen health coverage organization that deals with medical costs. One change the internet has brought is that a single part of the administration can now calculate and collect the money owed, since everything is done through the website, making it difficult to have any personal contact with the civil servant in charge of the operation. While double registration is old hat to French people, being self-employed in France brings daily surprises to foreigners who have just started running their business. This is just a gentle reminder: Yes, it is now a legal obligation to register with net.entreprise.fr if your yearly turnover exceeds €3,973, which pretty much means everybody.

IN FRANCE THE BEST INTEREST OF THE CHILD PREVAILS – SORT OF!
On July 11th 1975, the French law governing modern divorce was passed. To the man who drafted it, the jurist Jean Carbonnier, the foundation of French family law was “the best interest of the child”. Obviously, however, the legal understanding of this phrase can depend on what the reality is with the parents, siblings and so on. Also, I believe that an excess of the emphasis on transparency regarding a child can be completely against his or her best interests.

A groundbreaking ruling of the Nîmes court of appeal, issued on June 27th 2017, shows the limits of strict interpretation. In the case, a Napoleonic interpretation would have been that it was impossible to overrule the legal assumption that the husband is the father. In the days before DNA testing, it was difficult to dispute this assumption.

To sum up the situation, a married woman had a clandestine affair, got pregnant and gave birth. The lover suspected that he was the father and managed to arrange a DNA test. It proved, within a statistical margin of error, that he was the father. So he went to city hall and officially declared himself as such.

The married couple argued that the legal assumption was that a child born to a married couple has these two people as parents. The biological father stated that it was in the child’s interest to know who the real father was, that the DNA test left no doubt that he was the father, and that therefore the court must overrule the legal presumption that the child was born of the married couple.

This is the key quote from the court ruling:

« [S]’il est évident qu’il sera peut-être difficile pour l’enfant de devoir considérer que M. Z est son père et non pas M. Y, il appartiendra aux époux Y, et singulièrement à la mère, qui est, malgré tout, à l’origine de la situation, d’aider Anna à l’appréhender ».

In short, the best interest of the child is to know who the biological father is, and the court expects the mother to manage this difficult situation. The court adds that it is normal for this responsibility to fall on her, as she is responsible for the situation.

This ruling, after over ten years of court procedure, leaves me at a complete loss when it comes to an opinion of what is the best interest of the child. The married couple has appealed the decision to the highest French court, the Cour de Cassation, whose ruling will be very interesting. According to the legal opinions I have read, many think that this degree of transparency, considered to be in the child’s best interest, has gone too far.

How does this relate to French divorce law? In France, guardianship is decided in the best interest of the child. Many foreign mothers do not get full custody of their children. Indeed, the French court system fears that giving foreign women custody of their French children would result in their living elsewhere; in the French legal view, the best interest of the child is to stay in France.

This does not mean that, for example, an American mother divorcing her French husband cannot get full custody and the right to move back to the USA, taking her child or children with her. But the case she makes must address the right issue: the best interest of the child as the court understands it.

Le père biologique peut-il reconnaître l’enfant d’une femme mariée ?

OFFICE CLOSED FOR MY 60th BIRTHDAY
The office will close for slightly over two weeks for this occasion. It will start on Friday June 14th evening and will reopen on Tuesday July 2nd morning. As always, I will only be reachable by email for emergencies and important matters as I will be out of France. The service I offer of receiving mail for clients will continue while the office is closed. I have not figured out how I will send the July issue considering the situation.

Best regards,

LOCAL TAXES IN FRANCE

QUESTION

I am living long term in a four-bedroom house in Cergy. All the other roommates come and go, so I am the only person living there long term.
The owner says that if I claim this address on my tax form, it will cost him an extra €2000 in taxe d'habitation, so I must use a different address.
Is this true? What do you recommend to avoid this extra cost? I have never had a landlord do this before.

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ANSWER

The taxe d'habitation is one of the two local taxes individuals pay in France. It is paid by the person living on the premises. Thus it would make sense for the four tenants to split the bill. But the tax is owed by the person living there on January 1st of the year in question, so if you are the only one who is there from January 1st to December 31st, and all the others stay less than a year, perhaps some only a couple of months, then splitting the total is not fair. I assume the people there in October when the bill is issued are not the ones who were there at the beginning of the year.

To avoid this situation, as well as to avoid having to declare the rental income to the tax office, the landlord often says nothing about who is living on the premises and pays the tax himself, then prorates it by the time people stay. It is obviously fairer to the tenants than strict application of the law.

A possibly better way to address the issue is for the person who is there more permanently to be known to the tax office because he declares his income using this address. The others who are not staying as long declare their income using their parents’ address. The permanent tenant gets the entire bill in his name and splits it among the others, prorated by the time they stay. This is fair and avoids tax cheating. The only irregularity is that the other tenants are not complying with the regulation.

The ideal solution would be for each person to state to the tax office that they are tenants and for the tax office to charge the taxe d’habitation to each of them. It ends up being more paperwork and more expensive but totally compliant with the law.

As for your questions, “Is this true? What do you recommend to avoid this extra cost?”: No, of course it is not true. If you use this address to declare your income to the tax office, you will be liable for the taxe d’habitation and the landlord will save this amount (which may really be that high if it is a large house and his secondary residence). Therefore, to use such a scare tactic, he must fear something else. If it is your primary residence, you pay rent to the owner and he is required to declare this rental income and pay taxes on it. Thus, what is true is that he will have to pay more income tax, because he will be forced to declare his rental income after he goes through a complete audit, with fines, interests and penalties. This could amount to a lot more than the €2000 he told you.

To avoid this situation, you need to use a different address, which means lying to the tax office about where you live. Honestly, I see no solution that allows everybody to avoid serious problems. On the other hand, you should look at the situation in a very different way, in terms of three scenarios:

1 – You really like living there and you have no intention of moving, but more important, your tenancy is not secure. If that is the case, do not use this address with the tax office. It might take a few years, if ever, for the tax office to find out that the address you are using is fake. By then you may have moved to a new life.

2 – You really like living there and you have no intention of moving, and more important, you have a very strong claim to your tenancy. Then you use this address to declare your income and get ready for a huge backlash. It might take a year or more but it will come. If you win the power struggle, you then manage the occupancy of the house to your liking and hopefully it will be a lot more stable.

3 – You decide to move out quickly, as you do not like the place that much anyway. In that case, you use a different address documented by a good friend of yours. It will likely be easier in the future, since I assume you will choose a friend who will be a lot more helpful and honest than this man.

 

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THE IMMIGRATION STATUS NEEDED TO MARRY A FRENCH CITIZEN IN FRANCE
QUESTION

I am an American, currently resident in Ireland, and am looking to join my French partner in France in 2019. We are not yet married, but are looking at our options for us to live together in France and also allow me to work in France as soon as possible. Ideally, I will get a job with a French company in the coming months that will take care of my work permit; however, if this does not happen, we see two options and would greatly appreciate your help in better understanding the questions we have and deciding how to proceed:
Option 1: I go to France on a Short Stay Visa, Legal Marriage in France within 90 Days. Can I change from the Short Stay Visa to a Spouse Visa while in France? If not, would I need to go to the French Embassy in the US or Ireland and apply for a Spouse Visa? Can I work in France on a Spouse Visa? If yes, what is the time frame for being able to start working? Are there requirements for the Spouse Visa, such as French language and/or culture exam?

Option 2: I get a Long Stay Visa, I find a job in France. Can I convert the Long Stay Visa to a Work Permit immediately? If not, what is the time frame required from a visa/legal standpoint? Does it require waiting until the Long Stay Visa expires? If not, do I need to go back to US/Ireland (pending timeframe) to go to the French Embassy to apply for a Work Visa?

Please let me know if these are questions you can assist with, if there any additional information needed, and how we can proceed from here. Any help is much appreciated!

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ANSWER
I would like to quickly review:
Option 1 first, as there is not much to say. It would mean entering France as an undocumented alien, since you are claiming that you are coming as a tourist for a short stay when in reality you know you are coming to stay permanently as you want to get married. Whether you get married within the 90 days allowed by the visa waiver program (i.e. coming to France without a visa, just on the American passport) or later does not make a difference, as you have no immigration status.

This means you could expect some difficulties at city hall, since the guidelines that have existed for over ten years say that the district attorney (procureur de la République) should be informed as there is a presumption that this is a fake marriage. The good news is that American citizens are rarely subject to such procedures, since nobody thinks that they are getting married just to obtain French immigration status.

Here is the procedure: You get married at city hall and wait six months, then go to the prefecture with a file containing proof of the marriage and of living together, a minimum of one document of proof per month. Since you comply with the requirements, you get an appointment to have the request reviewed. If it is approved on the first try, you get a récépissé and wait for the carte de séjour to be issued. The horror stories often come from insufficient documentation of cohabitation. To make sure this is not a fake marriage, the couple must continue to live together for at least three years; otherwise the right to live in France is taken away.

Option 2  starts with you not being married at the time when you ask for the long stay, i.e., immigration visa. Therefore, you need to request it on your own merit, although your partner can give you an affidavit of lodging and support, which diminishes considerably what you need to submit to the consulate-VFS to obtain any visa, regardless of which one. You can ask for the visa in Ireland since you are a legal resident there.

The immigration status called visiteur is very easy to get. It does not give you the right to work, just the right to live in France. Once you are married and you prove that you live together, you can ask for a change of status, since the private life status supersedes the rule that someone with visiteur status cannot change the status for two years.

Anything else is going to require some work. There are three basic scenarios:
1 – You are self-employed, you sponsor yourself, and the visa is issued on your own merit, with help on the address and financing from your partner. There are several possible types of visa involved, but that is not the question here.

2 – You will be an employee, i.e. you have secured a labor contract and the employer’s agreement to sponsor your immigration procedure, in which case:

  • a) it can be l’introduction d’un travailleur étranger en France and the employer first submits the request to DIRECCTE
  • b) the employer gives you all the documents you need to submit one of the several passeport talent employee sub-categories.

3 – You want a “private life” visa, in which case your relationship must be legally documented before you can submit the request. I am not even sure that the fiancé visa still exists.

The choice boils down to these parameters:

Choose visiteur if you do not need to work in France or if your priority is to move to France as soon as possible. This way you have a one-year legal stay and you do not have to rush to get married. Also, it should be possible to submit the request for a change of status sooner. With the support you can get from your partner, your chances of being approved are close to 100%.

Choose a self-employment-related status if you want to start working in France right away and do not want your immigration status linked to your marital status. The choice between an independent visa and passeport talent depends on your plans and means. The latter requires a lot more to prove and to secure, especially financial. Keep in mind that your request can be refused (the risk is much higher than in the first case) and there is never an absolute guarantee it will work.

I advise you not to try to immigrate as an employee. Finding a job, especially from the USA, takes a long time in France. The procedure also takes a long time – over three months from the time the file is submitted to DIRECCTE, and preparing the file properly can add another month. Here too the risk of being refused is very high.

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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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