Rachat d'actions propres : ni requalification ni simulation
Auteur | Pascale Hautfenne |
Fonction | Licenciée en droit avec grande distinction de l'Université Catholique de Louvain |
La Cour d'appel de Mons a rendu le 22 septembre 2006 un important arrÍt censurant la tentation de l'administration fiscale d'attaquer un rachat d'actions propres d'une part sous l'angle de la disposition anti-abus (article 344, ß 1er) et d'autre part sous l'angle de la simulation.
Dans un premier temps, l'administration fiscale s'est fondÈe sur l'article 344, ß 1er, pour procÈder ‡ la requalification du rachat d'actions propres en distribution de dividendes et pour exiger le paiement du prÈcompte mobilier rÈsultant de cette requalification. La Cour dÈcide trËs justement que la requalification sur pied de l'article 344, ß 1er, ne peut pas conduire ‡ une modification du contenu des consÈquences de l'acte ‡ requalifier. La Cour en conclut qu'en l'occurrence, une requalification est impossible. La Cour d'appel confirme ainsi la solution dÈgagÈe par la Cour de cassation en novembre 2005 en matiËre de rachat d'actions propres et de requalification.
Par ailleurs, la Cour balaye la seconde argumentation dÈveloppÈe par l'administration fiscale, relative ‡ la simulation. L'administration tentait en effet de faire revivre la thÈorie...
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