When he sells the shares of his company, the company manager is taxable on the realized capital gain. It is subject to the single flat-rate deduction (or flat tax) of 12.8% to which is added 17.2% social contributions. Or an overall tax rate of 30%, or even 33% or 34%, taking into account the amounts involved, taking into account the exceptional contribution on high incomes (CEHR).
But it is possible to support a lower tax rate, or even to defer or escape this taxation.
1. Opt for the progressive scale
But if the PFU applies automatically, the company manager retains the possibility of opting for the taxation of his capital gain at the progressive scale. However, when the securities were acquired or subscribed before 1er January 2018, he can benefit from an allowance for the period of detention. However, this allowance only applies to the calculation of the income tax proper. It does not apply to social security contributions or to the exceptional contribution on high incomes.
When the securities sold have been held for more than 8 years, its rate is 65%, or even 85% when the sale relates to the securities of SMEs acquired or subscribed within 10 years of its creation. The option for the progressive scale also makes it possible to deduct a fraction of the CSG – 6.8% of the total income for the year following that of the sale.
“This presupposes having sufficient income taxed at the progressive scale the year following the transfer. Because what could not be charged cannot be carried forward the following year. Anyway, for business leaders who can benefit from the 85% reduction, the option for the progressive scale remains more advantageous than the PFU, even if they cannot deduct all the CSG. The maximum tax rate is then 23.95%, very much lower than the 30% of the PFU ”, concludes Erwan Grumellon, director of wealth engineering at Swiss Life Banque Privée.
2. Take advantage of the retirement allowance
Whether they opt for the taxation of capital gains at the progressive scale or remain at the single flat-rate levy, business leaders who sell their business on the occasion of their retirement can benefit from a reduction of 500,000 euros. applicable to the amount of the taxable capital gain.
Please note, however, that this allowance of 500,000 euros cannot be combined with the allowances for the period of detention if the taxpayer opts for income tax.
If the spouse or partner of PACS also exercises a management function in the company – and fulfills all the other conditions of application of the device – he can also benefit from the allowance of 500,000 euros, it being specified that the remainder of the fixed allowance not used by one cannot be carried forward and charged against the capital gain realized by the other spouse.
In principle, this regime is only applicable to disposals made until December 31, 2022. In order to take into account the difficulties linked to the economic and health context, the finance bill for 2022 provides for extending the benefit until as of December 31, 2024.
3. The contribution-transfer to benefit from a tax deferral
Another possible strategy to avoid the taxation of capital gains: that of contribution-disposal. This technique consists of transferring, prior to the sale, all or part of the securities of his company to a holding company controlled by the head of the company. The capital gain recorded during the contribution is placed in tax deferral until the sale of the holding itself.
“It amounts to postponing the payment of tax. But be careful, if the holding company sells the securities less than three years after their contribution, this operation in principle results in the end of the deferral. Unless the holding company reinvests 60% of the sale price – in an economic activity within two years of the sale of the securities. But two years goes by very quickly. If the business manager does not already have a reinvestment project when he sells his business, it is not won “notes Erwan Grumellon.
4. Donation before sale: to purge the capital gain
Rather than selling the business and then giving all or part of the proceeds from the sale to his children, the business owner can take advantage of the sale of his business to start passing on part of his property to his children.
Selling first and then giving away leads to double taxation, to income tax and social security contributions for the capital gain realized on the sale price, then to gift rights for the sums given to children.
He will therefore have every interest in reversing the order of operations, that is to say in giving all or part of the securities to his children, on condition that they then sell them. If he begins by giving the securities to his children, the capital gain will escape tax because only a transfer for valuable consideration triggers the taxation of capital gains but not their free transfer.
The securities will then enter the children’s patrimony for the value mentioned in the deed of gift and if they resell them at the same price as this value mentioned in the deed of gift, there will be no taxable gain. .
