While it is common to wonder whether to create an SCI with the aim of purchasing a real estate asset, it is much less common to wonder whether one should not be created in the event that the partner decides to one day purchase real estate. However, as we will see, this scheme can have a significant tax benefit.
Tax regime applicable to capital gains linked to transfers of SCI shares
Unless they have opted for corporate tax, the capital gains from the sale of shares in real estate partnerships realized by partners who are natural persons are taxed at the same rate as in the case of direct ownership of a building, namely 19% for income tax and 17.2% for social security contributions (an additional tax is also provided when the net taxable capital gain is greater than €50,000).
The acquisition price to be retained is in principle the subscription price of the SCI's shares. However, a somewhat complex tax restatement is necessary under the “Quemener” case law (Council of State, February 16, 2000, No. 133296) subsequently made applicable to SCI (Council of State, March 9, 2005, n°248825). An article is dedicated to this subject< /a>.
Reduction for length of detention
However, and this is the whole point of having subscribed to SCI shares well before the acquisition of the building by the SCI, a < strong>deduction for holding period applies to the amount of the taxable capital gain. And in terms of transfer of shares, the starting point of the holding period is the subscription of the shares and not the date of acquisition of the building by the SCI.
Thus, the longer the SCI shares were subscribed for, the greater the reduction for holding period. The percentage varies depending on whether it is income tax or social security contributions. The scale is such that capital gains are completely exempt from income tax after 22 years and exempt from both income tax and social security contributions after 30 years (calculation from date to date) .
Example: a taxpayer subscribes to shares in an SCI on March 15, 2021. This SCI acquires a building on March 15, 2025. The taxpayer decides to sell not the building but the shares of the SCI on March 16, 2030. The reduction for holding period for the calculation of the capital gain on the sale of the shares will begin to run not on the date of acquisition of the building by the SCI but on the date of subscription of SCI shares (i.e. 9 years in this case).
From the buyer's point of view, it can be argued that the latter will prefer to acquire not shares in an SCI but directly the building.
The disadvantage is that he will indeed have to manage an SCI, even if the management of an SCI holding a simple building is not necessarily complex, and it will also be liable for the liabilities of the SCI (even if liability guarantee clauses may be provided).
But he will benefit in return from a great tax advantage: the day he decides to resell the building, this time he will have a major interest in having the building sold directly by the SCI. Indeed, if we return to the previous example, assuming that the seller transfers the building on June 15, 2040, the starting point for calculating the holding period will be March 15, 2025, the date of acquisition of the property. building by the SCI even though the buyer will have acquired the shares of the SCI on March 16, 2030.
This is why it may be wise to create an SCI without necessarily waiting to buy real estate. In order to avoid any legal risk during this period, it will be necessary to ensure that the SCI nevertheless carries out a real activity such as holding SCPI shares.
Beyond this purely fiscal aspect linked to capital gains, the creation of SCI can also have a significant interest in terms of transmission of assets.
Maître Nicolas Rozenbaum, tax lawyer, is at your disposal regarding any request for tax assistance, both in terms of advice and tax litigation. He can also take care of creating a tailor-made SCI adapted to your legal and tax concerns.