Management Packages: BOFiP Guidance Finally Released

In April, several commentators reported that the French Ministry of Finance (Bercy) had accepted, in principle, a tax exemption in the event of reinvestment (see for example here target:_blank).

However, the BOFiP specifies that only the portion of the gain taxed as a capital gain “qualifies for all the provisions specific to the capital gains regime applicable to the disposal of securities” (§420). This includes the tax deferral regime (Article 150-0 B), the rollover relief mechanism (Article 150-0 B ter), and the retirement relief for business owners (Article 150-0 D ter).

The BOFiP also clarifies that gains placed under a deferral regime before 15 February 2025 do not fall within the scope of Article 163 bis H (§20).

(See the draft BOFiP released for consultation)

According to the draft guidance, the existence of consideration is assessed based on two criteria (§190):

1. The achievement of performance levels, whether related to the company’s results or to the performance of the investment made by other investors;
2. The requirement for the employee or executive to comply with specific contractual obligations.

The latter category includes:

• Non-compete clauses
• Loyalty or exclusivity obligations
• Restrictions on the transferability of shares
• Clauses governing share transfer conditions (such as drag-along or tag-along provisions)
• Put or call options on the employee’s or executive’s shares in the event of termination, death, or breach of obligations

The spring rumor suggesting that the tax authorities were willing to accept that an exit clause without a sanction (e.g. repurchase at a discounted price) would not, by itself, constitute an indicator of consideration therefore appears to be unfounded.

The BOFiP further clarifies that ratchet mechanisms and sweet equity structures are deemed to establish the existence of consideration (§200).

Characterisation of different types of gains under international tax law. It appears that the French Tax Policy Department (DLF) is inclined to treat the portion taxed as salary under the T&S (traitements et salaires) category, but this is nowhere explicitly stated. What about conflicts of qualification, for instance for employees or executives who are German tax residents?

Gift–sale transactions (and the impact on the Dutreil regime).
Securities subscribed or acquired under management packages are not eligible for the PEA – but what about gains realised on shares already held within a PEA before the new law entered into force?

What’s next?

As noted, these comments — promised for spring but released only at the end of July (under decidedly autumnal skies) — are less than fully satisfactory.

That said, they are open for public consultation until 22 October 2025, and our team is currently preparing a formal contribution.

This summer, our first postcard was addressed to Bercy.