Comment prévenir la donation déguisée dans une SCI ?

A disguised SCI donation is a transfer of shares presented as a sale. In reality, this transfer is not a sale, but rather a gift. In this context, the donor, who is a partner of the SCI, sells his shares to another member of the SCI. The beneficiary is often his children or heirs. The price of the shares is set at an amount less than or equal to their real value. The transfer of shares allows the indirect transfer of ownership of the assets. This method avoids gift or inheritance taxes.

A disguised donation is not a status voted by the partners of the Civil Real Estate Company (SCI). The transfer of shares is a decision of the donor himself. He freely chooses to whom he wishes to transfer his shares. However, he must inform the other partners of the SCI of his intention to transfer his shares. Depending on the statutes of the SCI, the donor is generally obliged to mention to whom he will transfer his shares. The partners then have a period of time to exercise their right of pre-emption. If the partners do not respond within the time limit, the donor is free to sell his shares to a third party.

The other partners may refuse the transfer of the shares. They may want to maintain control of the SCI between the current members or not approve the proposed beneficiary. In the event of refusal and depending on the statutes of the SCI, the donor must therefore sell them his shares. If no partner exercises the right of pre-emption, the donor can seek other solutions, such as finding another buyer or renegotiating with the partners. In the event of persistent disagreement, the donor may find himself blocked. He may then consider withdrawing from the SCI or requesting mediation to resolve the conflict.

SCI: conditions for acceptance of a disguised donation by the other partners

The refusal and acceptance of a disguised donation in an SCI depends largely on the company's statutes. In terms of transfer of shares, they may provide for a right of pre-emption. This right allows the partners to purchase the donor's shares before selling them to a third party. However, knowing that a disguised donation is a personal decision of the donor, the statutes do not explicitly govern this practice. However, they do frame the terms of transfer of shares. Here are some cases that could influence the acceptance of a disguised donation in an SCI.

Formalize the transfer

Pour qu'une donation déguisée soit acceptée dans une SCI, le donateur doit formaliser correctement le transfert des parts sociales :

• Il doit démontrer de manière indirecte son intention de transférer son patrimoine ;
• Il doit le faire sous l'apparence d'une vente pour éviter les droits de donation.

 

Pour masquer l’intention réelle de faire un don, il doit vendre ses parts à un prix inférieur à leur valeur réelle. Une fois la vente réalisée, le donateur doit rédiger un acte de vente pour formaliser le transfert. La rédaction de l’acte doit respecter les formalités légales pour être valide.

Record the deed of sale

The deed of sale in a disguised donation in an SCI must include precise details on the parties involved, the sale price, and the conditions of the transaction. It must be drawn up in writing, either under private seal or by a notary . It must be signed by the seller (donor) and the buyer (beneficiary). The deed of sale must be registered with the tax authorities to be enforceable against third parties.

Update the statutes of the SCI

If necessary, the articles of association of the SCI must be updated to reflect the new distribution of shares. This update must be approved by the general meeting of partners . The updates made must be published in the trade and companies register (RCS) to inform third parties of the new composition of the SCI.

Indirect donation: carry out an accurate assessment of the shares

An undervaluation of the shares during a donation in an SCI may be perceived as an attempt at fraud by the tax authorities. When a donation is made, the deed of donation must reflect the real value of the shares. If the tax authorities consider that the declared value is too low, they can reclassify the transaction. This reclassification may result in a reassessment of inheritance tax and gift tax.

Undervaluation of shares may affect the rights of children and heirs. In France, children have reserved rights over their parents' assets . Undervaluation may harm these rights by artificially reducing the value of the assets transferred. To avoid the risk of undervaluation, the donor must have his shares valued by an independent expert. This valuation must be documented and included in the deed of gift.

Disguised donation in an SCI: draw up a well-detailed document

The deed of donation formalizes the transfer of ownership of the shares of an SCI. It must reflect the intention of the donor and the conditions of the donation. Precise drafting of the deed helps avoid misunderstandings and future disputes. For example, if the deed is ambiguous, the tax authorities may interpret the transaction as a disguised donation. This can lead to tax reclassifications and financial penalties.

Avoiding the risks of tax reclassification

L'acte de donation doit inclure une description détaillée des parts sociales transférées :

• Il doit préciser le nombre de parts, leur valeur et les droits attachés à ces parts. Une description claire de ces parts permet de déterminer la valeur réelle de la donation. Cela évite les risques de sous-évaluation et de requalification fiscale.
• L’acte de donation doit mentionner les modalités de la donation. Cela inclut les conditions de transfert des parts sociales et les obligations du donateur et des bénéficiaires. Par exemple, l'acte doit préciser si la donation est effectuée à titre gratuit ou onéreux.

 

Une donation à titre gratuit signifie que le donateur ne reçoit aucune contrepartie en échange des parts sociales. Une donation à titre onéreux implique une contrepartie, comme un paiement ou une prestation de services. Les modalités de la donation doivent être clairement définies pour éviter les ambiguïtés.

Respect the rights of children and heirs

The deed of donation must respect the rights of children and heirs. In France, children have reserved rights over their parents' assets. A disguised donation can infringe on these rights and lead to family conflicts. Children can contest the donation in court and request a revaluation of the shares. This can lead to prolonged litigation and family tensions. A precise drafting of the deed helps protect the rights of children and avoid conflicts.

SCI disguised donation: choose the right payment method

In the context of a disguised donation in an SCI, cash payment is the simplest and most direct method. It consists of settling the total amount of the transaction immediately and in one go. If the donor chooses this method, he must set a realistic sale price that is consistent with the real value of his shares. Indeed, an undervaluation of the transfer price may be perceived as an attempt at fraud by the tax authorities, leading to tax reclassifications and financial penalties.

Another method of payment is deferred payment. It allows the payment to be spread over a defined period. If the donor chooses this method, he must include guarantees in the deed of donation. For example, a termination clause can be added to cancel the donation in the event of non-payment.

Risks and sanctions linked to a disguised donation in an SCI

Although a disguised donation in an SCI may seem advantageous, it involves significant tax and legal risks. Indeed, if the tax authorities discover that the transaction is in reality a disguised donation, they can reclassify the transaction as a donation. This results in the payment of gift taxes. They are often higher than sales taxes. In addition, penalties may be applied in the event of reclassification. These penalties can reach up to 80% of the recalled taxes, depending on the seriousness of the fraud. Late payment interest may also be required. They accumulate from the date on which the taxes should have been paid.

To avoid these sanctions, it is necessary to prove that the transaction has a real economic purpose. That is to say, when carrying out the transaction, a valid economic justification must be claimed. For example, increasing the rental assets shows an intention to invest in real estate. This proves that the objective is to develop the assets of the SCI . Another proof can be the involvement of the heirs in the governance of the SCI. This demonstrates their active commitment and their role in the company.

SCI: how to manage shares after the donation?

The management of shares after a donation in an SCI often involves the revision of the company's statutes and changes in the structure of the SCI. It also requires taking into account various factors that may impact the management of shares.

Revision of the statutes of the SCI

Après la donation, il est souvent nécessaire de réviser les statuts de la SCI :

• Les statuts sont les règles qui régissent le fonctionnement de la société et définissent les droits et obligations des associés ;
• Lorsque des parts sociales sont transférées, les nouveaux associés doivent être intégrés dans les statuts. Cette révision permet de mettre à jour la liste des associés et de préciser leurs droits et obligations.

 

The revision of the articles of association may also include changes to the company's management rules. For example, the terms of convening and holding general meetings may be adjusted to reflect the new composition of the company. The quorum and majority requirements for important decisions may also be changed.

Changes in the structure of the SCI

The donation may result in significant changes in the structure of the SCI. For example, if the shares are transferred to several children, the company may move from a restricted family structure to a broader structure with several partners. These changes may affect the dynamics of the company's management and require an adaptation of governance practices.

New partners may also have different intentions and objectives than the donor. It is therefore necessary to clarify the intentions of each partner and ensure that they are aligned with the objectives of the SCI. Open and transparent communication between partners avoids conflicts and ensures harmonious management of the company.

Impact on the management of social shares

The management of partnership shares after a donation can be impacted by several factors. First, the pre-emption rights of existing partners must be respected. Mismanagement of the pre-emption right can lead to conflicts between partners and legal disputes. In addition, indirect donations, such as loans and guarantees, must be managed carefully. For example, an interest-free or low-interest loan may be considered a disguised donation. The tax authorities may reclassify these transactions and recalculate inheritance tax .

SCI: indirect donations and their pitfalls

The disguised donation SCI can take several forms, such as interest-free loans, guarantees, or even sales at a reduced price. These transactions, although legal, may be perceived by the tax authorities as indirect donations if they are used to transfer value without paying the corresponding gift tax . For example, a guarantee granted by one partner to another may be suspected of masking a donation if it is not justified by an equivalent consideration.

To avoid these pitfalls, it is imperative to structure these transactions in a transparent and tax-compliant manner. This includes accurately documenting the terms of the loan or guarantee, as well as properly valuing any consideration. If you need personalized support in carrying out this process, consult a notary or a lawyer specializing in real estate law now. Their intervention ensures that transactions comply with current regulations.