Question 15604 — value added tax

Summary

Mr. Yannick Favennec-Bécot draws the attention of the Minister of Action and Public Accounts to the situation faced by notaries regarding the VAT applicable in the event of resale, due to divorce, of houses built under the Pass-Foncier system. In fact, the Pass-Foncier was implemented in 2006 to facilitate access to property for low-income households. However, this device has had two successive versions. If the two versions aimed to avoid combining the financing of the purchase of the land and the financing of the construction, in the first version the buyers of the property were tenants of a building plot by means of a construction lease which authorized them to build. In the second version of the Pass-Foncier, buyers were owners of the land on which they built but payment of the purchase price of this land was financed by means of a bullet loan. In both systems, buyers benefited from a reduced rate VAT provided they remained owners and occupants as their main residence for a period of 15 years. However, today notaries must deal with resale transactions, due to divorce, before the expiration of the 15-year period. This resale calls into question the reduced VAT rate and the Buyers must repay part of the VAT savings made. The following problem arises: the tax administration in the BOFIP admits exceptions to this challenge to the reduced VAT rate but these exceptions are not identical depending on the type of Pass-Foncier in question and nothing justifies this difference in treatment between taxpayers, especially since this inequality seems to come from an error in drafting the BOI. THE The problem comes more precisely from the exceptions linked to the buyout and rehousing guarantee. In one case it specifies that the reduced rate is not called into question "in the event of the rehousing guarantee being called into play" and in another "when the conditions for implementing this guarantee are met" (which does not necessarily imply its effective implementation). For the second version of the Pass-Foncier (financing of the land means of a loan in fine) the administration specifies (in BOI-TVA-IMM-20-20-40-20140715 number 490) that the reduced VAT rate is not called into question in the event of marriage, conclusion of a PACS, birth of a child, issuance of a disability card and also when the conditions for implementing the buyout and rehousing guarantee are met (i.e. in the event of death, professional mobility, unemployment, issuance of a disability card, divorce, dissolution of a PACS). For the first version of the Pass-Foncier (construction lease) the administration specifies (in BOI-TVA-IMM-20-20-30-20140715 number 680) that the reduced VAT rate is not called into question in the event of marriage, conclusion of a PACS, birth of a child, issuance of a disability card and also in the event of implementation of the buyout guarantee or the rehousing guarantee such as recalled in I-C paragraph 130 to 180 are met. (NB: there is a detrimental editorial error because it is indicated “are met” without it having been specified that these are the conditions for implementing the guarantee which must be met, which suggests that the rehousing guarantee must be implemented so that the reduced VAT rate is not called into question). If the notary is in the second type of Pass-Foncier it seems that the reduced rate is not called into question even though it is in the first version of the Pass-Foncier. This difference in treatment is all the more regrettable since in the context of another social property accession scheme (rental accession) divorce does not call into question the reduced VAT rate. Also, he asks him to kindly tell him what his position is on the problem submitted.

Machine translation from French. The official text remains authoritative.

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