Pacte Dutreil: The Conseil d'Etat overturns the criteria set by the Administration for assessing the preponderance of a commercial activity

A company with a mixed activity (civil activity and operational activity) can benefit from the provisions of Article 787 B of the CGI if the operational activity is preponderant.

In order to assess the predominant nature of the operational activity, the administrative doctrine uses two cumulative criteria: 

the turnover generated by this activity must represent at least 50% of the total turnover
the amount of gross fixed assets must represent at least 50% of the total amount of gross assets.
In a decision dated January 30, 2020, the Conseil d'Etat purely and simply annulled these criteria, stating that the preponderance is assessed in consideration of a set of indices determined according to the nature of the activity and the conditions under which it is carried out.

The criterion relating to gross fixed assets was in fact more than open to criticism since it was totally unsuited to reality.

This decision may change the situation for certain holding companies in particular, which could become eligible for the Dutreil Pact mechanism without the application of these criteria.

It should be noted that the annulment of this doctrine does not constitute an event within the meaning of article R 196-1 of the LPF that would open a new time limit for filing a claim in favor of the taxpayer.