Christmas and the end of the year celebrations are an opportunity to offer valuable gifts or sums of money to loved ones. To what extent is this allowed by the tax administration? Is there a limit? Doesn’t the gift run the risk of being considered a donation?
In practice, there is a tolerance known as the “present in use”. But the gift must then meet a very specific definition.
What is the present of use?
All types of gifts can come within the scope of the present of use, even the most expensive (vehicles, jewelry, sums of money …). However, to be considered as a customary present, the gift must be offered for a special occasion such as Christmas or the end of year gifts and its value must be compatible with the financial situation of the donor, ” which is assessed on a case-by-case basis », Remind the notaries.
As the present usage is framed only by case law, its definition can leave room for many interpretations. In practice, the main occasions that can justify the present use are engagements, weddings, birthdays, religious holidays or even obtaining a diploma. The event must therefore remain special.
What is the maximum tolerated value of a present of use?
This depends above all on the rules of common sense. Giving a gift worth € 10,000 does not in fact represent the same effort for a millionaire and for a taxpayer declaring € 2,000 in income per month.
” If we often hear it said that the present of use must not exceed 2% of the patrimony and 2.5% of the income, there is, strictly speaking, no precise and explicit rule given by the tax administration to determine the threshold of the present of use, of a manual gift. It is always a matter of fact », Explains insurance broker Nortia. ” Depending on the case and the wealth of the disposing party, it is possible to go further, with any proportion kept of course. “
In short, in order not to be assimilated to a donation, the customary present must not impoverish the donor.
Can payments on a PEL or a PER be considered as customary gifts?
In theory, yes, in particular if it concerns gifts made to minor children by members or friends of the family, even if this qualification nevertheless remains a question of fact which, in the event of a dispute, falls within the competence of the judicial judge.
Thus, for the sums paid by parents into a housing savings plan opened in the name of their child, it is accepted, in particular taking into account the maximum amount of sums that can be invested, that this financial investment can be qualified as a present. usage, considers the tax administration (BOI-ENR-DMTG-20-10-20-10).
Ditto for payments made to a retirement savings plan, specifies Nortia. Like the ELP, these media can be opened individually in the name of a minor child by one of its legal representatives. The tax advantage that applies to voluntary payments made on the PER will be deductible from the taxable income of the tax household to which the child is attached.
Do we have to complete certain formalities?
It should also be remembered that the manual donation must always be declared to the tax authorities, even if it is not taxable. For its part, the present of use does not require any formality and is therefore not taxable. Not being considered as a donation, it does not reduce the deduction of 100,000 € applicable (every 15 years) on direct donations, nor that of 31,865 € on family donations of sums of money in full. property.
What happens in the event of a dispute?
If the administration considers that the gift does not correspond to the definition of the present of use, it can reclassify it as a donation. ” The beneficiary may then be subject to the duties due with late payment interest, or even penalties in the event of serious bad faith. », Explains a Parisian lawyer.
Experience also shows that customary gifts may have been contested by heirs who consider themselves aggrieved. As a last resort, it is therefore the court which can decide. If it is requalified as a gift, the customary present must then be returned to the succession and it must not affect the hereditary reserve of all. It is important to note, however, that it is the value at the time of the donation that must be retained. This is far from neutral for gifts that may increase in value over time.
to know
A person with assets of € 300,000 and receiving a pension of € 3,000 per month can, for example, give up to € 3,000 to their children for the end of the year celebrations, without declaring it. Please note, real estate can never be donated without this transmission being certified by a notarial deed.