France: Taxation of individual sportspersons

by Christophe Moreau[1] and Carine Elbaz[2]

 

Introduction

The taxation of sportspersons is a complex issue due to the particular characteristics of the profession. In fact, sportspersons perform their activity in several countries and sometimes for a short period of time; their status with regard to labor law may be difficult to determine and their remuneration has different natures (remuneration from sporting performance, exploitation of image rights, etc.).

In addition, the taxation of the remuneration of individual sportspersons may be a political issue. France tries to find the right balance between attractive tax regimes and its old heritage of a social welfare state which required a certain level of taxes.

Some attractive regimes apply to the taxation of income from sport performance (chapter 1) whereas the remuneration from the exploitation of image rights is subject to taxation in accordance with ordinary general rules (chapter 2). Anti-abuse provisions prevent some schemes of tax evasion (chapter 3).

The social contribution tax regime is ruled by European regulations or an international social security treaty (chapter 4).

Sportspersons may be subject to value added tax if they perform their activity under a self-employed status (chapter 5).

 

1   Income from sport performance

The sportsperson is a French resident

Taxation of sportspersons depends on their status of employee or self-employed which results from the facts in which the activity is performed. In most cases, sportspersons are considered as employees and taxed as such (paragraph a). However, in some situations, sportspersons may act as self-employed persons (paragraph b). Whether they are taxed in the category of wages and salaries or in the category of self-employed persons, sportspersons can benefit from special favorable regimes.

 

a   Employee sportsperson

The remuneration received by a sportsperson is taxed in the category of wages and salaries if the sportsperson is qualified as an employee within the meaning of labor legislation.

Thus, professional or amateur sportspersons are taxed in the category of wages and salaries on the basis of art. L311-2 of the Social Security Code (SSC) when there is a relationship of subordination between the sportspersons and the legal entity (club, group, leagues, etc.) or when they can be regarded as an “entertainer” in the meaning of art. L311-3-15° of the Social Security Code (SSC).

The French Labor Code (LC) provides that “any agreement, by which a person is remunerated as an entertainer for the purpose of its performance, is assumed to be an employment agreement”.[3]

The French Supreme Administrative Court (Conseil d’Etat) has applied this presumption to the remunerations received by tennis players during professional tournaments[4] and cycle racers who take part to criteria[5], stating that the article of the French Labor Code is written in general terms and does not define limitedly the term of “entertainer”.

The terms of the agreement between the sportsperson and the legal entity have no influence on the qualification of the relationship.

The remunerations taxed in the category of wages and salaries are subject to the progressive rate of income tax at the marginal rate of 45% for annual remuneration over € 150,000. The sportspersons can choose between the deductions of a fixed amount of 10% of business expenses or their actual expenditures.

To attenuate the impact of the progressive rate of the income tax, sportspersons – who often earn irregular revenues – can benefit from the provisions of art. 84 A of the French Tax Code to determine the income derived from the practice of their sport (the so called “Article 100 bis regime”).

This regime allows the sportsperson to determine his income of a specific year by computing an average of the three or five last annual taxable income.

The regime of expatriates is very attractive for sportspersons who want to settle in France. This regime can be applied to anyone coming to France, in order to work in a French company and who fulfill some specific conditions.[6] It is thus applicable to employed sportspersons who have not been living in France during the past five years and who can prove that they have effectively moved to France. In addition, only sportspersons that have been called to work for a French company during a limited period of time can benefit from this regime.

This last condition, which is not always fulfilled by standard employees, does not constitute an issue for top level athletes like football-players, considering the fact that most of the time, they are directly called by a club to play there during a limited period of time.

When sportspersons fulfill all these conditions, their salary is 30% exempted and the remuneration related to their professional activity carried out abroad is totally exempted. This regime also presents the advantages that some passive income (investment income, real estate gain) received from abroad are 50% exempted.

This regime can be combined with the “Article 100 bis regime.

In addition, persons who had their tax residence abroad for the five previous years are liable to wealth tax only on their assets located in France for a period of five years. As a matter of principle, French tax residents are subject to wealth tax on their worldwide estate.[7]

In order to overcome the drawback of the time lag between the year of payment of the income tax and the year in which the revenues are received, sportspersons can also elect for a 15% withholding tax.[8] This withholding tax is not final and its amount can be deducted from the income tax calculated on the basis of the total revenues of the fiscal household.

 

b   Self-employed sportsperson

When sportspersons exercise their activity as self-employed, the income derived may be considered either as a non-commercial or as a commercial profit.

The remuneration of the sportsperson is taxed in the category of non-commercial profits when it is the counterpart of the performance activity as a sportsperson.

Remuneration is taxed in the category of commercial profits when it is the counterpart of commercial activities attached to the sportsperson’s status, like the income received as part of a sponsoring agreement or the return for participation in some events (see chapter 2).

Unlike employed sportspersons, self-employed cannot benefit from the expatriates regime. However, for the part of their remuneration qualified as non-commercial profits, they can elect for the “Article 100 bis regime” (income qualified as commercial profits are not eligible for this regime).

Finally, self-employed persons can also elect for the 15% withholding regime referred to above for employees’ persons.[9]

 

The sportsperson is a foreign resident

If a foreign sportsperson performs his activity in France, French tax law withholds a tax on the remuneration (paragraph a) which – in most cases – is not limited by tax treaties (paragraph b).

a   French tax law

The remuneration of a non-resident sportsperson is subject to a non-definitive withholding tax if the activity is performed in France. This withholding tax is levied at the rate of 15% (or 75% if the sportsperson is a resident of a non-cooperative state in the meaning of the French Tax Code)[10] and is calculated on the gross amount of the remuneration.

The sportsperson will be under an obligation to file a tax return to the non-residents tax center. French law provides that the minimum rate of taxation for non-residents is 20% of the net income,[11] except if the sportsperson can prove that the tax rate applicable to the sportsperson’s worldwide income would be lower; then this tax rate applies. This provision aims at taking into account the advantage of being only imposed on the sportsperson’s France-sourced revenues for the progressive rate of income tax.

The amount of the withholding tax is deductible from the income tax to be paid. If the withholding tax exceeds the tax payable, this excessive amount can be reimbursed to the sportsperson. This occurs when the sportsperson has high professional expenses as for the Italian Formula 1 racing driver Giancarlo Fisichella.[12]

 

b   Application of tax treaties

The majority of tax treaties subscribed by France contains stipulations established by the OECD model. Pursuant to art. 17 of the OECD agreement, non-resident sportspersons may be taxed in the state in which their personal activities as such are performed.

This means that, in most cases, tax treaties allow France to levy a withholding tax.

The tax treaty between France and the United States provides an exception for low income: where the amount of the gross receipts derived by the sportsperson from such activities, including expenses reimbursed or borne on their behalf, does not exceed US$ 10,000 (or its equivalent in euros) for the taxable period concerned, the country in which the sportsperson exercises his personal activity cannot levy a withholding tax.

Moreover, recent tax treaties often provide for an exclusive taxation in the state of residence, when the major part of the performance is financed directly by such state.


2   Income from exploitation of image rights

Resident sportsperson

Income from exploitation of image rights of a resident sportsperson may be taxed as wages and salaries or as income of a self-employed person.

Due to the presumption of the Labor Code, the remuneration is often taxed as wages and salaries.

In the context of a sponsorship agreement, income from exploitation of image rights will be taxed in the category of wages and salaries if the sportsperson is in a subordination position toward the company or the organisation using the image. This is the case when the agreement creates obligations for the sportsperson (obligation to participate in manifestation of sport events) toward the company.

However, the presumption is rebuttable and several decisions of the French Supreme Administrative Court held that the exploitation of sportspersons’ image rights could be regarded as an autonomous commercial exploitation and not as an extension of their sportive activity.[13]

The decision[14] regarding a soccer player in the Olympic Lyonnais team from 2000 to 2004, Edmilson Gomes de Moares, allows one to determine some criteria under which the exploitation of image rights could be regarded as a real independent economic activity. This is the case when the value of sportspersons’ image rights can be dissociated from the sportspersons’ performance, when he has acquired a certain reputation and the image rights’ commercial exploitation can last a certain period of time after the sportsperson ceases his sporting activity.

The fact that the image rights are exploited through a company does not change the qualification of the remuneration from a tax standpoint.

 

Non-resident sportsperson

The income derived from the exploitation of image of non-resident sportspersons is subject in France to a 33.33% withholding tax or to a 75% withholding tax if the sportsperson is a resident of a non-cooperative state in the meaning of the French Tax Code.[15]

If the sportsperson is a resident of a state which has concluded a tax treaty with France, the withholding tax can be reduced or eliminated, depending on the provisions of the agreement.

Pursuant to the commentary on art. 17 of the OECD Model Tax Convention[16], where the use of entertainers or sportspersons’ image rights is not closely connected with their performance, relevant payment should not fall within the scope of art. 17. In this case, art. 7 (business profits) or art. 15 (income from employment) is applicable and the remuneration from image rights is taxable respectively in the country of residence of the company or the sportsperson or in the country where the employment is actually exercised.

Conversely, where payments constitute, in substance, remuneration for activities of the entertainers or sportspersons, art. 17 should apply.

The French doctrine argues that income derived by an entertainer or a sportsperson from the use of image rights is inseparable from that person’s professional activities and must, therefore, be taxed in the state in which such income arises. This interpretation leads to apply art. 17 to image rights in almost every case.

However, as stated in the paragraph on resident sportspersons, French case law is more balanced. Where image rights are clearly related to a specific performance (e.g. the organizer of a sports tournament paying the sportsperson for the right to use their picture on posters to advertise the event), art. 17 should apply to income derived from the use of such rights. Conversely, this should not be the case when image rights are obviously not connected to a performance in a given State (e.g. video game producer using the image of a sportsperson in a video game).

 

3   Anti-abuse provision of art. 155 A

Anti-abuse provisions prevent some schemes of tax evasion.

The most common tax planning is the following one. The sums payable to the sportsperson are attributed to a legal person which is a resident of a low tax jurisdiction, and it pays back to the sportsperson a small salary in conformance with an agreement. The difference between the remuneration for the performance and the salary is placed in a tax heaven, and the sportsperson is taxed only on the low salary. The French tax authorities call these companies “rent-a-star systems”.

The French tax authorities may use the procedure of the abuse of right. However, the provisions of art. 155 A of French Tax Code are easier to implement in those cases.

It is applicable in three cases:

–   when the legal person is situated in a state with a privileged tax system;

–   when the legal person has no economic activity; or

–   when the sportsperson controls directly or indirectly the legal person.

 

In those three situations, the tax authorities are allowed to tax the sportsperson on the sums paid to the legal person and not only on the sums received in conformance with the salary.

This mechanism may apply to the remuneration of sport performance or for the use of image rights. However, due to the presumption of the Labor Code, the tax authorities can tax as salaries the remuneration received through a company without using the provisions of art. 155 A. Indeed, this article is particularly used to tax in the hands of the sportsperson the income derived from the exploitation by a company of the sportsperson’s image rights.

The taxation is calculated by the tax authorities in the relevant category of revenue depending on the activity performed by the sportsperson.

 

4   Social security position

Resident sportsperson

Self-employed sportspersons are affiliated to the social regime of non-employee persons. They contribute to:

–   the insurance healthcare and maternity system of non-employee non-agricultural professions;

–   to the old-age insurance regime of liberal professions; and

–   to the personal family allowance of employers and self-employed workers.

 

Sportspersons having an employee status are affiliated to the general regime. The contributions and the Social Security contributions are due on all the remunerations paid to the French resident sportspersons:

–   salaries;

–   fringe benefits;

–   bonuses of matches or transfers;

–   the advertising commissions when they are paid to the sportsperson by their association or the organizer of the competition.

If sportspersons are affiliated to the general regime, contributions are the same as for other employees but the following special favorable regimes may be applicable:

–   for small organizers (associations and sports clubs employing less than ten employees permanently, excluding athletes), the remuneration paid to sportspersons are exempted from social contribution and CSG (Contribution Sociale Généralisée) under two limits;[17]

  • only for the first five competitions of the months;
  • for each competition, the exempted amount is limited (€ 122 for 2015);

–   for monthly remuneration lower than 115 Smic (minimum wage established on 1 January) determined on an hourly basis, the amount of remuneration subject to social contribution is assessed at a flat rate;[18]

–   for sportspersons treated as entertainers/artists, the contributions are calculated on a reduced rate.[19]

 

Non-resident sportsperson

If the sportsperson is a European Union citizen, the sportsperson can only be subject to the social legislation of a single member state pursuant to the Regulation EU 883/2004 and EU 987/2009.

–   Sportspersons seconded in the meaning of art. 12 of the Regulation are subject to the social legislation of the state, usually an employee or a self-employed person. The sportsperson should get an “A1 form” from the employer or from the other relevant authority in charge of posted workers.

–   When the sportsperson performs the activity simultaneously or alternatively on the territory of two member states, art. 13 of the Regulation states that the sportsperson is subject to the social legislation of their residence if the sportsperson performs the most part of the activity in this member state and to the social legislation of the member state where the club is established otherwise.

If the sportsperson is not a European Union citizen, but is usually a resident of a country with which France has signed a treaty on social security legislation, this treaty foresees the applicable legislation in case of secondment or in case of activity performed simultaneously or alternatively in two different states.

When there is no treaty on social security legislation between France and the country in which the sportsperson is usually resident, the amount paid by the foreign club to sportspersons performing in France are subject to French social legislation.[20]

The regime is the same as for French sportspersons depending on their status of employee or self-employed persons and non-resident sportspersons can benefit from the favorable regimes described above under the same conditions.

 

5   Value-added tax (VAT) treatment

A sportsperson’s performance is subject to VAT under two conditions. First, the performance has to be realized against some consideration (which can be financial or not). Secondly, the performance will be subject to tax only if the sportsperson is liable to VAT and is acting as such.

To fulfill this last condition, the sportsperson has to be self-employed and to realize this performance as part of their usual business activities.

The sums received within the framework of a legal relationship involving a subordination link and those which have no direct link with a service provision will not be subject to VAT. In the same way, the income deriving from an employment contract, or the prices and bonuses received on the occasion of competitions and the personalized help assigned to the top athletes are not subject to VAT.

On the contrary, the advertising performances realized by a sportsman (advertising campaigns, concession of rights on image or name) outside the framework of an employment contract are taxable to VAT.

As a matter of principle, the VAT is neutral for the person liable to tax, as the person can deduct the VAT paid on the amount of the VAT collected.

 

[1] Partner & Associate Attorney at Law, NomoS – société d’avocats, Paris, France.

[2] Associate Attorney at Law, NomoS – société d’avocats, Paris, France.

[3] Labor Code, art. L7121-3.

[4] CE, 22 June 2011, no. 319240, Becker.

[5] CE, 08 July 1988, no. 60731, Association “Le circuit de l’Aulneˮ.

[6] French Tax Code, art. 155 B.

[7] French Tax Code, art. 885 A.

[8] French Tax Code, art. 182 C, 3°.

[9] French Tax Code, art. 182 C.

[10] French Tax Code, Article 182 B, I

[11] French Tax Code, Article 197 A

[12] CE, 17-02-15, n°373230

[13] CE 6 April 2007 no. 271563, Durand; CE 20 March 2013 no. 351495, Sté. Zidane Diffusion; CE 3 March 1993 no. 83462, Jauffret.

[14] CE 4 December 2013 no. 348136, Edmilson Gomes de Moares.

[15] French Tax Code, art. 238-0 A.

[16] Commentary published on 15 July 2014.

[17] Circ. DSS-AAF-A1-94 60 28 July 1994 (BOSS no. 95-14).

[18] Arrêté 27July 1994 (JO 13-08 p. 11894).

[19] Arrêté 24 January 1975 (JO 31-01).

[20] CSS, art. L111-2-2.