February 2017
A cherry bomb is a spherically shaped firework. It is also a 1976 song by The Runaways. The all-female teen band did not last very long (1975-1978) but their rhythm/lead guitar player, Joan Jett, has managed to have a very long career.
Watching the demonstrations on January 21st all over the USA, I wondered if President Trump had not activated one too many cherry bombs.It would be unfair to former President Obama to state that it felt as though during his two terms things did not move. History will tell what his real achievements and failures were. But based on what I saw, aside from his inaugurations,his two terms did not bring massive demonstrations such as those seen on January 21st. The Black Lives Matter movement tried, and succeeded up to a point in getting people out in the streets marching. But, from what I could see, most of the country did not get involved. One could make the point that on January 21st it was mainly women marching; it felt like the women of mainstream America were demonstrating. One demonstration, even as massive as it was, does not at all indicate what the next four or maybe eight years will bring.
The Runaways were known for their forceful opposition to many views expressed in their time, especially about women. Time will tell if their spirit will continue to sweep the streets of American cities.
AUTO-ENTREPRENEUR “AND THE ISSUANCE OF THE” CARTE DE SÉJOUR
Laws and regulations should change as little as possible in order for the populace to have stability and reliability. Therefore, reforms and changes should occur infrequently and only in due time. They must be done sufficiently well so that they can last a long time. I believe this is true everywhere.
However, regarding the” auto-entrepreneur “fiscal status, the French administration has been caught between two opposite desires, which make it very difficult to form consistent policy. On the one hand, the status is very popular and growing numbers of people are signing up for it. On the other hand, employers and businesses abuse the status by outsourcing to these independent workers tasks that employees previously did. This means they escape the very protected status of the French employee. Uber is the perfect example of this, with drivers going on strikes as if they were normal employees and the government getting involved.
The latest change is that” auto-entrepreneur “status has been merged into a new one called” micro-entreprise. “It might sound like nothing more than a cosmetic name change with not much more to it. But for the French self-employed” carte de séjour “holder it makes a big difference, and for the better. To make it simple, as the French administration states, the” “micro-social” “aspect can be separated from the” “micro-fiscal.””
This demands an explanation: I had to ask three times in early January to make sure I understood the scope of this change.
The” micro-social “element is one of the best things about” auto-entrepreneur “status: the ability to declare the amount of sales monthly or quarterly and the associated social charges (which must be paid with every declaration), and, for those who choose to do so, the possibility to pay the income tax at the same time. For those who prefer the traditional way, income taxes can continue to be paid three times a year. This also means that the declaration requires just one payment, which is allocated to various taxes including health coverage and retirement by the French administration.
The” micro-fiscal “aspect means the law defines how much profit you have made based on recorded sales. This is another of the best parts of” auto-entrepreneur “status, mainly because even though you cannot claim business expenses, you can run your business with virtually no accounting, since all that counts is the money made.
Now, keep in mind that the prefecture takes a dim view of requests for a” carte de séjour “based on” auto-entrepreneur “status. The worst situation is to ask for professional self-employed status, or” profession libérale, “in which case the prefecture asks for documents that are impossible to obtain.
This latest change, however, means it is once again possible to benefit from the “micro-fiscal “aspect while turning down the” micro-social, “which was the stigma that” auto-entrepreneur “status had in the eyes of the prefecture. In short, by separating the two, it is once again possible to easily obtain a” carte de séjour “while being self-employed under the fiscal status of” MICRO BNC.”
MINORS IN FRANCE TRAVELING ABROAD
In an earlier column, I talked about the possibility of having a procedure for traveling minors reinstated sooner than later. French children will now once again have to have special permission, the” autorisation de sortie du territoire “or AST, to leave France without their parents. This had been terminated in 2012, since traveling in Europe had become increasingly easy, especially since the creation of the Schengen Area. Field trips outside France became very common, and children of parents from different European countries could also travel for vacations by themselves.
In about the past two years or so, though, the situation has changed and another priority has arisen: fighting terrorism and radicalization. Reinstating the obligation to ask the administration’s authorization for a minor to leave France is meant to prevent young people from going to the Middle East and joining ISIS. I understand and respect this decision, issued on November 2nd 2016, as it makes it a lot more difficult for such troubled teenagers to leave France.
At the end of October, some 1,860 minors in France had been identified as having been radicalized, 400 had left France to join ISIS and 19 had been identified as fighters.
The document needed for French minors to travel outside France is exactly the same as the one for traveling non-French children, whether alone or with their parents, have always needed to prove they are French residents.
The fact that this rule is now enforced for French children as well shows that if there was some leniency in the past for children traveling with their parents in and out of France, those days are now gone.
For more information (in French), see www.lemonde.fr/societe/article/2017/01/15/les-mineurs-devront-avoir-une-autorisation-de-sortie-du-territoire-pour-voyager_5062994_3224.html
FRENCH GIFTS TO CHILDREN
France, like many countries, allows parents to pass assets on to their children and sometimes grandchildren during their lifetime and pay little or no tax on the gift. But this right can conflict with the French rule of absolute equality between children of a given parent.
An initial tax waiver is allowed on a gift to a child of up to 100,000 euros every 15 years. The giver must be less than 80 years old to benefit from the exemption. For a gift to a grandchild, the maximum is 31,865 euros every 15 years.
This kind of gift is completely different from what is called in French a” don manuel “– roughly, a gift given “by hand.” This is the customary gift given for a birthday, Christmas or some other special occasion, such as a wedding, graduation or birth. Even a gift of money can fall into this category. The main distinction between gifts of assets and customary gifts is the value of the gift compared to the net worth and income of the giver; the relationship or ties between the two people are also considered.
To avoid trouble during the giver’s lifetime as well as when his or her estate is handled, The first kind of gift should be recorded with the tax office and, just as important, documented by a” notaire.” This brings us to the specifically French concept of absolute equality between siblings born of the same parent.
If all large donations are recorded, and customary giving is reasonably equal, handling the giver’s estate is quite simple. How much is the estate worth at the time of death? How much did each child receive? Any discrepancies are accounted for in the apportioning of the estate among the children.
Now, if gifts to children are not recorded and it is difficult to trace or even just obtain an estimate of the value at the time of giving, it may be virtually impossible to settle the estate because the” notaire “will never be able to ascertain if the split is fair and legal.
This is a recipe for a long and awful lawsuit between siblings if some are certain that there has been significant favoritism that cannot be quantified and therefore there is a strong belief that everything is unfair. This feeling can fuel endless court battles.
For foreigners, the simplest thing to do is make a French will stating that the applicable law is that of the country citizenship. This alleviates the impact of French law, though it does not guarantee an absence of lawsuits. Note that for those who have renounced their American citizenship and retain only French nationality, this solution is not possible.
For more information (in French), see www.lemonde.fr/argent/article/2016/07/02/comment-donner-sans-passer-par-la-case-impot_4962493_1657007.html
and www.lemonde.fr/famille/article/2015/11/30/le-don-non-declare-un-cadeau-empoisonne_4820652_1764986.html
IS HELPING UNDOCUMENTED ALIENS LEGAL IN FRANCE?
It can be very difficult for foreigners living in France to understand that undocumented aliens have rights conferred by the French state and enforced by the administration.
In the USA, the status of undocumented aliens was the topic of heated debates long before the last presidential election, and it is certainly an even hotter topic now.
I remember the first time my American wife watched undocumented aliens demonstrating in the streets of Paris with uniformed police protecting them during their march through the city. Her comment, as pertinent now as it was then, was, “Why are the police not arresting those people and deporting them, since they are in France illegally?”
A more recent example of this situation was the so-called jungle outside Calais. For years, the police were instructed to crack down on foreigners there and on the people helping them – but at the same time, the Ministry of Social Services was negotiating with the major nonprofits working there on how to make sure decent living conditions were provided.
Even more recent is the situation on the Italian-French border. The main roads on the Riviera are now closed to migrants, who therefore are going farther north seeking ways to enter France. This takes them into steep mountains similar to the Rockies, where the winter weather is brutal. In the Roya Valley, local people are getting organized to help immigrants stay alive, finding shelters and driving them on the difficult roads. They are not paid to do this; on the contrary, they spend their own money to help these people.
Since the beginning of the year, the police have been arresting people helping migrants and charging them with a felony, namely” aide à l’entrée, au séjour et à la circulation d’étrangers en situation irrégulière “(helping undocumented aliens enter, stay and travel in France). The charge is normally brought against criminal rings profiting from migrants.
At the same time, French law states that there is an obligation of aid, and failure to meet it is also a felony:”le fait pour quiconque s’abstient volontairement de porter à une personne en péril l’assistance que, sans risque pour lui ou pour les tiers, il pouvait lui prêter soit par son action personnelle, soit en provoquant un secours.” (willful refusal to help a person in danger when, at no risk to oneself or others, one could have helped personally or by calling for emergency assistance).
The police argue that if no help were being provided, migrants would go elsewhere so as to avoid certain death. The nonprofits and activists reply that the migrants are there and will die without help.
So far, in the few rulings issued by the Nice Criminal Court, those involved were found not guilty. But that is not the end of the story, as police continue to arrest and prosecute the Good Samaritans.
This situation has been on my mind: can I get in trouble by giving advice to undocumented aliens? When does someone become an undocumented alien? What about a person who lacks French ID for six months while an appeal is reviewed before getting the appointment to obtain the ID? Is such a person complying with the requirements to obtain legal status in France while waiting for documents to submit?
I am sure we will hear more about legal and illegal immigrants in France as the current French presidential campaign cranks into full gear.
REDESIGNING MY WEBSITE
Since my Christmas vacation starts soon and there is no January issue, during this time I plan on having my website redesigned, mainly so as to use more recent software to update and manage it. This means there may be a couple of days when the site will not be online, and I may have difficulty accessing my email. I am sorry for the inconvenience, but we will do everything we can to keep this outage as short as possible.
Best regards,
ANSWER
French law has indeed evolved a lot since the 1920s, but I am nearly certain that your French nationality is well documented and you should not encounter major problems renewing your various French IDs.
Asking for the” certificat de nationalité française “might be needed if your documents are too old to be used alone, but this should have no influence on your citizenship since you acquired it as a French person and based on what you state, you have never been informed that you lost it.
So let’s review your situation one issue at a time. First, what do you have that proves your French nationality?
1 – Carte nationale d’identité
Your parents, or maybe just your French father, recorded your birth in the USA at a French consulate. By doing this, he asked that your French nationality be acknowledged by virtue of your being born to French parent. I do not know how old your national identity card is, but the fact that it was issued to you proves that you were French at that time.
2 – Livret de famille
I assume you married in the USA and went to a French consulate to record your marriage as a French citizen. I also assume that your spouse was an American citizen – or least not French! When you recorded your marriage at the consulate, the French administration issued you the livret, a sturdy booklet in which the wedding was recorded as well as, later, the birth of your children. This means that when you got married you were acknowledged as still French and you kept your French citizenship afterwards. I cannot see anything you could have done that would have made you lose it later.
I would be interested in knowing if you registered your children’s birth with the French consulate and had your” livret de famille “updated.
3 – You will retire to France soon.
Here you have a choice. I am not sure how old your identity card and livret are, since you did not mention when you got married. There are two ways to address the immigration process for your wife, provided that she has non-EU citizenship. The first is to have her ask for an immigration visa at a French consulate. It should help that your marriage is on record, but you will need to ask for a valid passport or” carte nationale d’identité. “If your documents are 30 or 40 years old, I am pretty sure you will need to go to court to obtain the” certificat de nationalité française, “which might be very complex to get in the USA. This alone might be a good enough reason for not asking for an immigration visa. If no court decision is needed, there should be very little red tape, though it may take a long time to receive the documents. In that case, asking for the immigration visa is the best way to go.
The second option is to settle in France without a visa for your spouse. She would be an undocumented alien for as long as it takes you to obtain the current French IDs you need: both the” certificat de nationalité française “and your French birth certificate showing that you were born abroad (request that at the office in Rezé, near Nantes). Once you have everything, she will be in a position to state that she is married to a French citizen and she has lived with you in France long enough to prove the stability of your relationship. (The seniority of your marriage in the USA will count for close to nothing during the initial steps of the procedure with the prefecture.) The procedure is grounded on provision L313-11-4°”, A l’étranger ne vivant pas en état de polygamie, marié avec un ressortissant de nationalité française, à condition que la communauté de vie n’ait pas cessé depuis le mariage, que le conjoint ait conservé la nationalité française et, lorsque le mariage a été célébré à l’étranger, qu’il ait été transcrit préalablement sur les registres de l’état civil français “(to a non-polygamous foreigner who is married to a French citizen, provided that they have continued to live together since the wedding, that the French spouse is still French, and that when the wedding was celebrated in a foreign country it was recorded by the French authorities).
As far as I know, the guidelines are that the couple must have lived in France for a minimum of six months to prove that they have a stable marriage in France.
As you can see, there is a lot to consider before choosing one or the other, such as:
• Do you need two incomes to live in France? If so, she needs the visa so she can work right away. This is the most critical one I can see.
• Do you already have a joint bank account in France? If not, a visa will help a lot in opening an account, as you need to hold current French ID.
• Do you plan to rent or do you own in France? If you will be a tenant for a while, you’d better have all your paperwork in good shape when you meet the landlord, as there is fierce competition for rentals in most big French cities.
I could list other issues, but those are the most obvious ones.
The main consequence of obtaining the primary residence protection is the strict limitation of the landlord’s rights. For example, in order to give you notice to vacate on the anniversary date (which requires a six-month notice), the landlord has only three possibilities to make it possible:
• He wants to live there or wants his children to live there
• He wants to sell the apartment untenanted, in which case you have the right of first refusal
The apartment needs so much renovation that you are better off moving to a different place.
Another consequence is that any rent increase is defined by a government ratio,” the indice de référence des loyers. “So, as you can see, the law will supersede some of the most critical provisions found in the secondary-residence lease once you establish that this is in fact your primary residence.
Another welcome consequence is the way you will need to prove your address at the prefecture. At first the lease might be enough, as it was signed less than three months before. After that, the homeowner’s insurance policy will be the only document you have if the monthly payment of rent and charges includes everything, especially the basic utilities (gas and electricity). But once you have your” avis d’imposition “in your hands, you can challenge the landlord and put the utilities in your own name. Yes, it will mean that you are de facto increasing the rent more than what the law authorizes, but considering how important utility bills are as proof of residence, many people consider this to be worth it.
This evolution can easily be accomplished with a one-year rental contract that is renewed automatically. It is a tad more difficult with a non-renewable lease, since every year you are signing a lease that this is a secondary residence. That said, the abovementioned French tax documents prove that your apartment is your primary residence. It is just that the chances of the landlord having a massive fit regarding the change from secondary to primary residence are quite high. The only leases that will prevent this from happening are very short-term rental contracts, which are final because such contracts are never meant to allow the tenants to stay in the place past the end date of the contract.
This illustrates very well the power the tenant has in the relationship and therefore validates the landlords’ fear that they will lose control over their apartments.
As for the substantial wait for an appointment, it depends on a lot of factors; my experience is that lately carte de résident holders get their renewal appointment several months after the date of request and the process of issuing the card also takes a long time. So be ready to hold a récépissé (periodically renewed) for up to a year. It might feel unsettling, and you might be anxious to get it over with, but there is no way I know of to speed up the process and the prefecture is good about keeping you documented. You have to trust the system, which means trusting the prefecture, if you want to go through this with some peace of mind.
QUESTION
RECEIVING FRENCH AND AMERICAN PENSIONS AT THE SAME TIME
I approach my retirement at the tender age of 69. After working in the USA for approximately ten years, I have been working in France ever since. I decided to start receiving my US Social Security at the age of 66. I receive approximately 500 euros a month. I recently checked with CNAV about how much I could expect for my French retirement benefits. Although I won’t ever have all my semesters, I was pleased to find out that combined with my US benefits, I would be able to survive, after a fashion.I was, however, shocked to find out from the US Social Security advisers at the US Embassy that once I begin receiving my French retirement benefits, my US benefits will be cut by 40% to 50% unless “vous est attribué dans le cadre de l’accord entre la France et les Etats-Unis” is written on my French benefit statement. They sent me a copy of the Windfall Elimination Provision, which seems to say that the only way I could continue to receive the entire 500 euros from the US is if my French employers had deducted not only the French taxes but also US taxes from my French income. If I understand this correctly it seems to be quite unjust. I would assume that the 500 euros I receive from the US is based on the contributions that were deducted from my income when I worked there. I don’t understand why that would change if I hadn’t also been “double taxed” when I work in France. I hope that you will find this to be an interesting topic because I would love to hear what you think about it.
ANSWER
I believe there is a misunderstanding in the way one should understand what “vous est attribué dans le cadre de l’accord entre la France et les Etats-Unis” means. I would translate it as “is paid to you according to the treaty between France and the USA.”
The treaty in question regards Social Security, i.e. it deals with how retirement benefits are handled when an individual receives pensions of both origins. The two public systems – the Caisse Nationale d’Assurances Vieillesse (CNAV) and Social Security Administration – share information and modify the amount paid to the individual according to what the other is paying. You never get the amount from either system that you would have had if you were only receiving one retirement payment.
The way I generally address such situations is to have the person first ask for the Social Security pension and later ask CNAV for the French pension, informing Social Security that this request has been filed and making sure the CNAV knows the American pension has been paid for a while. The two organizations then get in contact and calculate the combined benefits. I believe that this is the procedure defined in the treaty.
I read the Windfall Elimination Provision carefully and I understand it very differently from you. In a convoluted way, it states what I just wrote. Formerly, Social Security did not take into consideration the French income as well as the French pension. Eventually this situation was deemed unfair compared to that of other American retirees, whose income was taken into consideration. It would appear that Social Security has completely phased out this so-called benefit. I would like to clarify that I am far from being an expert in this matter. I advise you to seek guidance from an expert so you can have a clear understanding of this provision.
France has two other organizations paying pensions. CIPAV is for self-employed people with profession libérale status and RSI is for those with commerçant & artisan status (merchants and craftspeople). In both cases, the same treaty is applied.
Another common situation is where there are not enough quarters to qualify for Social Security. CNAV, as far as I can see, always has enough credits to pay something. In such cases, it is possible to ask that the Social Security credit be transferred to CNAV. Clearly there is a loss in value when this is done because the two systems do not evaluate the credits the same way. But at this point the choice is between losing some but getting most of it, and losing everything. CNAV, CIPAV or RSI has to be instructed to get the credits from Social Security.
Maybe I am being naïve, but I do not know how to deal with such situations without complying with the treaty so as to receive the best benefit possible.
I hear and understand your concern. If there were a significant risk that one could lose the benefit of one or the other, my answer would be drastically different.
My last comment is more personal: the money you put in the system was not your pension. It was used to pay the pensions of the people entitled to benefits then. Social Security, CNAV, CIPAV and RSI are not investment firms. The amount of money you receive today is based on current laws and is paid by people who are working today and paying these taxes and social charges.
In France and even more in the USA, there is a debate about getting rid of this system and having your payments be invested so that it is indeed your money that you get back later. Whether it is fair or not is not the point; the current system was created this way because financial institutions can fail and declare bankruptcy, and investments can lose just about their entire value. Always keep in mind that the French and American public retirement programs were created as a lesson from the Great Depression. For a few things, the public system offers the best guarantee that it will be there to deliver when you need it. This belief, which has been shared for decades, is being challenged today in both countries.
DISCLAIMER
Please forward this message to all those who would be interested in its contents. The information contained in this newsletter is intended only as general information. I strongly urge readers to seek professional guidance concerning the legal and tax matters mentioned. This newsletter is intended as a general guide and is not to be taken as professional advice.