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Decision No. 149

Association Témoins de Jéhovah v. Directeur des Services Fiscaux

Considering that article 757 of the General Tax Code enunciates  :

"The deeds containing either the declarations par the donee or his representatives, or the judicial acknowledgment of a manual donation, are liable to donation tax.

The same rule applies when the donee reveals a manual donation to the fiscal administration."

Considering that these stipulations apply without distinction to all persons, both physical and juristic, and in the absence of any limitation or legislator, could not be applied only to physical persons and not to juristic persons, including associations, without breaching the equality of all, thus creating discrimination between taxpayers, not desired by the legislator;

Considering that it is acceptable for the administration to use information obtained during a tax audit to proceed with the recovery of registry taxes;

Considering that the amounts recorded in the financial records of the association are manual gifts in the sense of Article 757 of the CGI and cannot be defined otherwise, that of donations or the result of collections not being antinomic with that of manual gifts, since there is a transfer from hand to hand of personal property that can be acquired by simple tradition, that the practice of a religion to whom donators are willing to contribute, cannot suffice to efface the liberal intention that apparently motivates the benefactors, so that the smallness of the gift does not exclude it from this description of a liberal gift;

Considering that in introducing Article 15 in the Financial Law of December 30, 1991, the legislator decided to impose the transfer tax on declared manual gifts and thus modified the taxation of manual gifts by adding a new tax to previous ones contained in line 1 of Article 757 of the CGI;

Considering that in this specific situation and without taking into account the quality and personality of the appellant, the association presented, like all taxpayers during the audit, its accounts records showing the entries of amounts received from benefactors;

Considering that the only question to be raised is: by presenting its accounting to the administration which requested it, does the taxpayer reveal, according to the article 757 paragraph 2, the donations and put himself under the obligation to declare the donations in the month delay of the presentation of its accounting? [comment: By so doing the donator would accept the principle to pay a 60% tax on these donations.]

Considering that without denying the consequences of the reform introduced by the legislator for the realm of the associations, that subsist on the resource of the generosity of their adherent or sympathizing benefactors, it is not the prerogative of the judge to reform or modify the law, no matter how inadequate it may be;

...

Furthermore, the association calls on the judicial consequences of the taxation that it disputes and denounces a system tending to confiscation according to which only associations being tax audited would be automatically taxed. So, the Association les Témoins de Jéhovah considers that this system creates a great judicial insecurity and an irremediable restriction for associations. To that, the court answered that the litigious taxation only results from the application of the law to which everyone, both physical and moral persons, is subjected, and that the financial consequences, even severe, do not constitute an unfair behavior of the administration;

Consequently, the court decided to dismiss the appeal of the Association Les Témoins de Jéhovah and to confirm the previous judgement;

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