The following is based on a letter I wrote to a client, a non-resident of France, who plans to purchase property in France.
Allow me to outline the area of French law that you should be aware of, as well as pointers related to your proposed real estate acquisition.
1) French income tax issues. As a non-fiscal resident, the only income tax issue you need to concern yourself with is French income tax on rental income.
2) Tax on wealth. If the net value of your French residence does not exceed 1.3m euro, that tax will not be a concern for you. If it does exceed that amount, we should explore that further.
3) Inheritance tax. At the death of the owner(s), there is a potential inheritance tax. Estate planning is indicated: Should you make lifetime gifts to children—what are the pros and cons? What inheritance tax rates apply to each of the parties in this scenario?
4) Rights of children. The French have what they refer to as “forced heirship rules”, meaning that a child has an enforceable right to a share of his or her parents’ estates. This sometimes uncomfortable and unwanted rule (especially if there are children of a prior marriage) can be circumvented for a non-resident by purchasing through a holding company, or else, in certain cases, by executing a French will relating to the French property and its contents. This very important issue, the choices, and the consequences of each should be thoroughly understood by you.
5) Local taxes. Not many to consider, but they should be known and understood.
6) Capital gains on sale. These rules have been changed recently and should be explored. As you are a U.S. citizen, any capital gain is reportable both in France and in the U.S., with appropriate tax credits. French capital gains rates change, but the rate applying to a U.S. resident (more broadly, to most anyone outside the EU), has remained at 33.33%. There is a reduction of taxable gain, related to the period of holding, so that after 30 years, the residence may be sold tax-free (in France, that is).
7) Purchasing the property. When you have chosen a property, you should consult with us before you sign any document, e.g., a promesse d’achat; promesse de vente or compromise de vente. Brokers and sellers are often to eager for you to obligate yourself and will urge you to sign prior to a thorough vetting of the documents. Brokers will often tell you that signing a promesse d’achat is necessary to hold the property. That may be true, but you also may be taking the first step toward entering into a binding countract with conditions you may regret. This is certainly true with the contract of purchase and sale (“promesse de vente” or “compromis de vente”). Property searchers who you meet on the internet or otherwise may state that they know the legalities because they have been through it a thousand time, and therefore consulting a lawyer is not necessary. Not so. Not at all. A lawyer is an essential part of the deal, and often is the cheapest in terms of cost.
We will vet the document for a variety of elements that should or, in come cases, shouldn’t be in it. We will discuss questionable or unclear points with the seller’s Notaire. We will advise on the surrounding issues as enumerated in this blog, as well as the overall cost of the purchase, including notarial fees, transfer taxes, etc. In short, a lawyer, especially one versed in French and U.S. law, is indispensable. You must have a good Notaire. Notaires come in all shapes and sizes. Some are excellent—i.e., reactive, proactive, intelligent; but many are otherwise—the source of frustration, delays and sometimes worse. We work with an excellent firm here in Paris. As a Notaire has national jurisdiction, one located in Paris does not compromise your position if you are buying in the provinces. We will introduce you to our Notaire, but then we do all of the intermediary work and coordination of the deal. We will “hold your hand” from the get-go up to and including the final closing, which may be two or even three months after signature of the initial contract of purchase and sale.
8) You should decide whether to take title in your name individually, in joint names with your wife, or otherwise (e.g., through a holding company, as mentioned above). Part of this depends on the property regime that applies to your marriage. Is it separate property or community property? This crucial fact has to be carefully determined.
9) If you plan to finance the purchase, other points come into play.
10) If you rent out the property at any time during the year, as you indicate you may, there are certain rules concerning short-term rentals of which you should be aware.
11) If you set up a holding company, you will need a bank account for the company and you will need to gain familiarity with the rules concerning how such a company is run and what French (and possibly U.S.) reporting requirements exist.
12) As I am assuming you do not plan to move here, I will not discuss visa requirements, but otherwise, we should consider visa issues and the effect French residence might have on your French income tax and other taxes. If you are planning to become a resident, that would influence some of the points discussed above.