To qualify for exemption from the three percent tax which applies to entities who directly or indirectly hold real estate located in France, there must be an activity of real estate dealing and this condition is not satisfied by a single sale and purchase transaction.
Legal entities qualify as real estate dealers, independently of their legal form, provided that they "usually" acquire real estate properties with a view to reselling them with speculative intent.
Case law has consistently established that the “usual” condition is determined based on the nature, number, frequency and size of transactions. The “usual” condition may be satisfied either from several sales made within the same transaction or from the buyer’s past or present activity. The tax authorities have stated that the usual nature of transactions and the intent to resell are most often found in the corporate purposes as set out in the company's by-laws but factual circumstances are also to be taken into consideration. Hence, the “usual” condition can be adequately proved by the continuity and large number of sales and the intent to resell at the time of the initial purchase.
In this decision, a Belgian SA was reassessed on the three percent annual tax on properties, the company having acquired and resold a real estate complex. In reply, the company argued that, acting as a real estate dealer, it was exempt from this three percent tax.
The Court pointed out that, in order to have a right to this exemption, the property dealer must record the relevant real estate in its inventory, which was the case here, regardless of whether such property was resold in the same year. Nevertheless, despite the company’s by-laws and the fact that it was registered with the Registry of Trade and Companies as a real estate dealer, the Court declined to accept the company as carrying on the activity of a real estate dealer on the ground that the “usual” condition was not inherent in the activity provided for in the by-laws and that the company must be able to prove that it habitually sells real properties.
Hence, the Amiens Court of Appeal held that a foreign company which declares that it is a property dealer but which has performed only a single purchase-sale transaction is not exempt from the three percent tax on real estate held by a legal entity.