As described in our client alert, the new French-qualified RSU regime (Loi Macron) finally became effective on August 7, 2015. I have discussed the benefits for the new regime in an earlier blog post.
Unfortunately, the news is not all good. This is because the law provides that qualified RSUs can be granted under the new regime only under a plan that has been approved by shareholders after the effective date of the law (i.e., after August 7, 2015). Of course, we do not expect that any of our clients will ask their shareholders to approve a new plan or re-approve an existing plan just to grant French-qualified RSUs. This means that it is currently impossible for the vast majority of our clients to rely on the new regime (with the exception of only those companies that coincidentally just approved a new plan or had shareholders approve amendments to an existing plan). For these companies, until and unless their shareholders approve a plan, the conservative advice is to either not grant qualified RSUs or grant them in reliance on the old regime (with 2-year vesting and 2-year additional holding period, as well as employer social tax due at grant at a rate of 30%).
Under the old regime, it has been acceptable to grant French-qualified RSUs under a sub-plan adopted by the Board or Compensation Committee, as long as the sub-plan was adopted before the first qualified grants were made. We are currently lobbying the French tax authorities to give non-French issuers the same concession under the new regime, meaning that we want them to agree that it will be sufficient for our clients to grant qualified RSUs under the new regime if a sub-plan has been adopted after the effective date of the new regime. Our colleagues in France had first discussions with the tax authorities and they seem to be open to this interpretation, but they have not been willing to give definitive guidance yet.
Therefore, again, under a conservative approach, we do not recommend relying on the new regime (unless the plan happens to be shareholder-approved after August 7, 2015). If companies wanted to take an aggressive position, they should go ahead and adopt a sub-plan under the new regime and grant French-qualified RSUs under the new sub-plan (in conjunction with the main plan). If the French tax authorities eventually agree with our interpretation, it is possible that these grants will be grandfathered in and can rely on the treatment under the new regime. However, if the tax authorities disagree with our interpretation or allow it only for grants made after they issue clarifying guidelines, the risk is that companies will have failed to pay employer social tax at grant (as is necessary under the old regime, to which these grants would be subject), in which case penalties may apply. Therefore, companies should carefully consider whether they are willing to take this risk.
The French tax authorities have not given us any indication on when (or even if) they may issue clarifying guidelines on the shareholder approval issue. Based on previous experiences, I would not hold my breath and be prepared for this issue to linger for a while. Of course, we will continue to keep our clients updated.