French Tax Law – Taxation of Management Packages and Intermediary Companies

In its decision dated 28 January 2022 (Conseil d’Etat, 28 January 2022, n° 433965), the French Conseil d’Etat has confirmed the evaluation grid and taxation of “management packages” as identified in its decisions of 13 July 2021 (CE, 13 July 2021 n° 428506, n°435452 and n° 437498).

The decision’s significance rests, in particular, in the reclassification of the capital gains from the sale of securities held by the intermediary of a company as wages. This decision is the logical follow up to the Hemery decision of 27 June 2019 (CE, 27 June 2019 n° 420262) and the Paris Administrative Court ruling of 5 January 2022 (TA de Paris, 5 January 2022 n° 2009524).

In both cases, at the time of sale, the management package securities were held by a société civile (which paid corporation tax in one case and personal income tax in the other). The reclassification of the capital gains as wages had been rejected, as the court did not decide to exclude the société civile for abuse of right, as fictitious, or having been created with the sole aim of tax avoidance. The court could therefore not uphold that a fraction of the capital gains realised should be considered as wages for the taxpayer’s paid employment.

Until the Conseil d’Etat’s current decision, doubt remained as to the efficiency of the implementation of a procedure for abuse of right, as the interposition of an intermediary company does not automatically favourably modify a taxpayer’s situation.

In the present case, the court showed that the company, incorporated in Belgium , had no economic substance and had been interposed solely for tax purposes eventhough the bare ownership of the securities in the company had been gifted to the taxpayer’s children.

Therefore, the interposition of a company cannot guarantee for a taxpayer that the capital gains’ will not be reclassified as wages if the court implements a procedure for abuse of right.

Furthermore, as regards the tax scheme applied to the revenues, circumstantial evidence provided by the legal documentation such as a buyback guarantee, leaver provisions in shareholder agreements, rate of return achievements, and strong ties with employment status have allowed the Conseil d’Etat to consider that the proceeds from the disposal of securities should be reclassified as wages.

Finally, as was the case with last July’s decisions, the Conseil d’Etat did not consider capital risk as an element that allows avoidance of reclassification as wages.

Please also read our newsletter of 10 September 2021, which dealt with the evaluation grid for earnings from Management Packages:
France’s Conseil d’Etat has clarified the evaluation grid for earnings from “management package” mechanisms in the form of share purchase warrants or share subscription or purchase options

New Perimeter Announces Maha Jweied as Advisory Board Co-chair

New Perimeter, DLA Piper’s nonprofit affiliate, is pleased to announce that Maha Jweied has assumed the role of co-chair of its Advisory Board, alongside Mark Ellis, executive director of the International Bar Association. New Perimeter provides long-term pro bono legal assistance in under-served regions around the world, and its Advisory Board is comprised of justice experts and thought leaders from the public and private sectors who provide guidance on New Perimeter’s initiatives.

 Jweied, who was previously a member of the Advisory Board, directs a consultancy working with a number of nonprofit and multilateral organizations. She leverages insight gained after nearly 12 years in the executive branch of the US government.

Previously, she served as acting director of the US Department of Justice’s Office for Access to Justice, the primary office in the executive branch supporting indigent defense and civil legal aid for low-income and underserved communities. In that role, she also served as the executive director of the White House Legal Aid Interagency Roundtable. While with the DOJ, Jweied represented the US government as its indigent defense and legal aid expert in bilateral settings and multilateral meetings and negotiations at the United Nations, the Organization of American States, the Organisation for Economic Co-operation and Development, the Open Government Partnership and the International Legal Aid Group.

“Maha’s deep experience in the area of access to justice has been an invaluable asset to New Perimeter since she joined the Advisory Board in 2019,” said Sara Andrews and Claire Donse, New Perimeter co-directors. “We are delighted that Maha’s significant contributions will be amplified in her new role as Advisory Board co-chair, and we look forward to working closely with her and to benefitting from her leadership.”

“I’m honored to serve in this role with Mark and join Sara, Claire and the dynamic group of board members to advance New Perimeter’s innovative model for tapping private sector talent and resources to support access to justice and the rule of law,” Jweied said. “It’s a special privilege for me personally to step into the co-chair position previously held by Mary McClymont – a true visionary and champion of the equal access to justice community in the United States and around the globe.”

New Benefits and Incentives for foreigners that qualify as Digital Nomads, Investors, Persons of Independent Means, and Pensioners in Costa Rica.

Costa Rica is in the eyes of those who have chosen a new lifestyle that combines work and tourism. These are the so-called Digital Nomads who are looking for new destinations from which they can work remotely and at the same time get to know new places, cultures, and even gastronomic options.

This new concept was born as a variation of teleworking, but much more flexible. It basically implies the possibility to work remotely from any other part of the world, while maintaining a work relationship with their foreign employer or working on their own for clients abroad.

Without doubt, Costa Rica offers multiple tourism advantages and incentives to ensure that a model such as this one will be attractive for these individuals. Hence, the Government of the Republic approved and published a new Law to attract Digital Nomads, offering a series of benefits during their stay in the national territory. Among these benefits, we can highlight the following:

  • Legal visa for a year, extendable for another year, for the digital nomad and his/her immediate family (spouse and underage children)
  • Possibility of opening bank accounts within the local banking system.
  • Validity of their driver’s license in the country.
  • Total exemption from the Tax on profits (income).
  • Exemption from taxes to import their basic personal work equipment.

Therefore, digital nomads are welcome in Costa Rica, and they are urged to consider our country as their temporary or definitive destination.

Additionally, those foreigners that wish to legally reside in Costa Rica are also welcome in our country. Recently, the Government of Costa Rica approved and published a new Law to attract those foreigners that qualify under any of the following immigration categories: investor, person of independent means, and/or pensioner. The new Law contemplates a series of incentives and tax benefits to make their residency in the country even more attractive. Among these benefits, we can highlight the following:

  • Temporary residency for a 2-year term, renewable, for the resident and his/her immediate family (spouse and underage children).
  • One-time exemption from import and nationalization taxes for their home furnishings.
  • Exemption from import and nationalization taxes for two land, air, and/or marine vehicles for personal and/or family use.
  • 20% exemption on transfer taxes for real estate properties acquired while the law is in force.
  • Decrease in the minimum investment capital amount necessary to qualify as an investing resident to US$150,000 dollars; this investment can be made in properties, securities, productive projects, and/or projects of a national interest.

Costa Rica is a magical destination that captivates all those who have the chance to get to know our beaches, oceans, mountains, volcanoes, rivers, savannahs, forests, cities, and most of all our people. At Oller Abogados we are at your disposal to help you become a digital nomad and/or legal resident in Costa Rica.

Jose Andrés Prado, Associate, Oller Abogados

T: (506) 2257-1290

Connecticut’s Paid Family and Medical Leave Program’s Applications Are Now Open

In a press conference on December 1, 2021, Governor Ned Lamont, along with Connecticut Paid Leave Authority Chief Executive Officer Andrea Barton Reeves, announced that the Connecticut Paid Leave Authority is now accepting applications for Connecticut residents who want to participate in the state’s new paid family and medical leave program. Approved applicants will be eligible to receive benefits beginning January 1, 2022.

The Connecticut Paid Leave Authority expects 1,000 – 1,500 applications per day, and indicated the Connecticut Paid Leave Authority is prepared to handle that level of applications.

In its Human Resouces Toolkit, the Connecticut Leave Authority outlines the “process when a worker tells you they’re applying for CT paid leave.”

How Do Employees Apply for Leave?

The Connecticut Paid Leave Authority is partnering with the Connecticut Paid Leave Authority’s benefits administrator to oversee the administration of paid leave benefits claims. Employees may submit applications via the Connecticut Paid Leave Authority’s online portal, telephone, fax, mail, or email. Employees have 15 days from the initiation of a claim to provide all requested documentation and should, according to the state, know their approval status five days after completing the required paperwork.

Employees must notify their employers or their human resources departments at least 30 days prior to the start of leave for foreseen circumstances, and as soon as is practicable for unforeseen circumstances.

Employer’s Role in Application Process

As part of the paid leave application process, employees will need to ask their employers to complete an employment verification form. Employers must complete the employment verification form and return it to the Connecticut Paid Leave Authority’s benefits administrator within 10 days. Employers are also required to notify employees that they may be eligible for Connecticut paid leave benefits whenever they notify their employers of their intent to take leave.

If the Connecticut Paid Leave Authority denies an employee’s claim, the employer is not responsible for filing any documents on the employee’s behalf. Employees may file a request for reconsideration with the Connecticut Paid Leave Authority’s benefits administrator within 10 days of a denial.

Employers may require workers to use vacation days or paid time off before they receive Connecticut paid leave benefits; however, employers must allow employees to retain up to 2 weeks of paid time off while on Connecticut family and medical leave.


The state will make approved claim payments to employees two weeks in arrears either via a stored value card or by direct deposit. The Connecticut Paid Leave Authority will not issue paper checks.

Article by:
Nicole S. Mulé
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Morgan Lewis makes up 40 partners

Morgan Lewis has elevated 40 lawyers to partner, the majority in the United States but also including lawyers in Europe, the Middle East and East Asia.

Morgan, Lewis & Bockius has promoted 40 new partners, effective 1 October.

Philadelphia professionals Conor LarkinRachel LewisAdam Prince and Andrew Rocks in the corporate and business transactions practice have been promoted, as have Matthew Ziegler in the finance group, labour and employment lawyer Benjamin Jacobs and private client specialist Ellen Deringer in the same office.

Corporate and business transactions lawyers Leland Benton and Brian Soares, investment management advisers Brian Baltz and Ruoke Liu, and Eileen Ho of the structured transactions team are based in Washington, DC.

Brandon Tanguay of the corporate and business transactions group, finance lawyer Christopher Carter, labour and employment professional Keri Engelman and tax practitioner Meghan Mccarthy have taken a step up in Boston.

Chicago lawyers affected include Saghi Fattahian of the employee benefits and executive compensation practice and Matthew Russell on the labour and employment team, while the New York-based practitioners are Etienne Shanon and Ashley Hale in the corporate and business transactions and labour and employment groups, respectively.

Other members of the labour and employment practice to be elevated include Princeton-based Emily Desmedt and Silicon Valley lawyer Andrew Frederick. In the Los Angeles finance practice Keith Fujiu also became a partner.

In Europe, corporate practitioner Allison Soilihi and finance lawyer Nichola Foley in London were promoted, along with fellow finance adviser Alexey Chertov in Moscow, while Dubai-based Amanjit Fagura in the investment management practice, and corporate lawyer Kuinan Wei in Beijing, also took a step up.

Also affected were 12 contentious lawyers including US-based Julie SilvaBanee PachucaJared WilkersonZachary JohnsWilliam McEnroeMark FioreChristopher McAuliffeZachary HillGene ParkCorey Houmand and Ryan Lighty, along with Jitsuro Morishita in the Tokyo office.

In a statement, firm chair Jami McKeon highlighted the new partners’ “excellence, strength, resilience, and empathy”.

Other firms to announce mass promotions in October include Goodwin Procter which also elevated 40 lawyers to partner.

Get the facts about our Global Tax Practice

1. What is Baker McKenzie’s position on the impact of its tax advisory work?We advise our clients on understanding the highly complex, ever evolving and often conflicting tax rules around the world, and on how to assess and meet their tax obligations.

Taxation is a core area of our global expertise. Our advice is always in strict accordance with all applicable laws and regulations.  Transparency and accountability are integral elements of such advice and we strive to ensure that our clients adhere to both the law and best practice.

2. Does Baker McKenzie support a more equitable global tax system?

Baker McKenzie supports the development of a simplified, consistent, and well understood global tax system, and works towards collaboration between different stakeholders for systems of taxation that balance the interests of businesses, citizens and governments.

3. Is Baker McKenzie involved in lobbying Governments and/or policymakers?

Like other law firms and relevant industry or subject matter experts, Baker McKenzie is regularly requested to assist governments and regulatory bodies with the analysis and development of potential new legislation in countries around the world, by contributing our legal expertise and experience.

We are also asked by clients to provide expert input on proposed laws and regulations including through public submissions processes or occasionally by legislative testimony. All our work in this area is done in compliance with applicable laws and regulations, including lobbyist registrations where required.Want to know more?Our Global Tax Practice

Baker McKenzie’s global tax practice is internationally recognized and highly regarded for its depth, breadth and quality. Taxation is a complex area of law and it is a core area of our expertise – as it is for many other international law firms. Many of our clients operate, invest and do business globally and require our expertise to understand and comply with the relevant laws, including their taxes. We help our clients assess and meet their tax obligations on a worldwide basis, and navigate highly complex, ever evolving and often conflicting tax rules around the world. Our services are always provided in strict adherence to all applicable laws and regulations. More information about our Global Tax Practice

Corporate Services

Corporate services generally refer to services provided in relation to the maintenance of a company in accordance with local laws. For example, multinationals that have business operations in a given jurisdiction, but no in-house legal staff based locally, sometimes ask Baker McKenzie to provide basic corporate services on their behalf. Corporate secretarial support is a common form of this ancillary corporate service provided by many leading local and international law and advisory firms across the world, as well as corporate administration firms, accounting and CPA firms.

Government and Industry Engagement

Law firms, industry and subject matter experts are routinely approached by governments, regulators and industry bodies to contribute views and analysis on potential laws, rules and regulations. As an established global law firm with leading experts in multiple practice areas, we have participated in this consultative process in various jurisdictions. This is done transparently and in full compliance with all applicable laws and regulations.

Client Intake and Review

We take very seriously and stand by our Code of Business Conduct and compliance with professional responsibility rules and expectations.  Baker McKenzie performs comprehensive anti-money-laundering and sanctions compliance and background checks on all potential clients as an integral part of our global client intake risk management procedures. All potential clients are examined through World-Check and other databases to screen for Politically Exposed Persons (PEPs), close associates, and family members; global sanctions lists; global regulatory and law enforcement lists; adverse media; Iran Economic Interest (IEI); identifying Ultimate Beneficial Owners (UBOs); and state-owned entities and state invested enterprises. Given our global footprint, we evaluate not only US laws, but also the laws, rules and regulations of all applicable jurisdictions, related risk factors, and our professional obligations in deciding whether to take on a particular client or matter. On occasion, we find that clients later engage in activities that are not consistent with our initial due diligence, or new facts or developments come to light, which would cause us to terminate our representation of them.

Sanction Issues

Baker McKenzie’s award-winning international trade and export controls practice provides clients with expert advice on how to fully comply with all trade sanctions laws.  For example, the United States government issues sanctions prohibitions against entities and individuals who must comply with these or face civil or criminal penalties. US law expressly permits seeking and providing legal advice on how to comply with any sanctions issued; this is essential to supporting the policy objectives behind the imposition of such sanctions in the first place.  The Office of Foreign Assets Control (OFAC) guidance issued by the US government confirms this. It also includes general licenses authorizing legal services so that companies can consult with legal counsel to ensure compliance with the laws in their dealings with any sanctioned entities or individuals.

Also, the US government has implemented different levels of sanctions. For example:

  1. Targeted sanctions: Often only apply to very limited transactions
  2. Sectoral sanctions: Target only very specific and limited types of activity, but do not otherwise prohibit dealings with such parties
  3. Blocking sanctions: Generally, prohibit most US persons or entities from engaging in any transactions with “Specially Designated Nationals” (SDNs)

To comply with US sanctions laws, both those subject to sectoral sanctions and those who deal with them on non-sanctioned matters need access to competent legal advice and representation. These are expressly permitted under US law. Again, in advising clients, Baker McKenzie complies with all sanctions and export controls laws.

Our Continued Commitment

Our clients are our top priority. We are proud of the work we do and the clients we serve and take our duties to them very seriously. This includes client confidentiality and professional attorney-client privilege.  We remain firmly committed to providing best-in-class legal services locally and globally, and to being fully compliant with all applicable laws, rules and regulations. We also recognize the important role we play in society and work towards collaboration between different stakeholders for legal systems, especially of taxation, that balance the interests of businesses, citizens and governments.

Morgan Lewis increases Partner Numbers

The Philadelphia-headquartered firm’s latest round of partner elevations includes 12 litigators. Morgan, Lewis & Bockius has elected 12 disputes-focused practitioners as part of its 40-strong round of partner promotions. The affected individuals include intellectual property (IP), energy and competition litigators, as well as those with broader litigation experience. The two affected in the Houston litigation practice are Banee Pachuca, who focuses on healthcare-related fraud, abuse and investigations work including data privacy and anti-kickback provisions, and trial lawyer Jared Wilkerson who concentrates on disputes affecting the energy and technology industries as well as government regulatory and eminent domain matters.

Jones Day gains BP and GM litigator

A litigator who has appeared in Deepwater Horizon and GM ignition switch cases, leads a raft of recent moves in the US, with tax expertise in demand. Commercial litigator Bridget O’Connor has joined Jones Day in Washington, DC, from Kirkland & Ellis, bringing experience of high-profile United States corporate litigation. O’Connor litigates at both state and federal level, including product liability, mass and toxic tort, restructuring, energy and infrastructure cases, as well as class actions. She has also appeared in arbitrations.

How to register a European trade mark at EUIPO

More and more companies wish to expand and open new avenues into the European market. One of the first steps that must be taken in order to start trading in Europe is to register the trade mark across all European markets through EUIPO. In this post we explain the steps that must be taken to register with this body.

Registering a brand on a European level provides protection across all 27 countries in the European Union, with any new countries joining the Union at a later date automatically offering trademark protection in accordance with European guidelines.

How to register a European trade mark

In order to register a brand within Europe, it is important to make an application to the European Office of Intellectual Property (EUIPO) to undertake the procedure as follows:

  • Application. The application can be filed in any one of the three official languages of the European Patent Office – EPO – (English, German or French). English is recommended as the translation will be valid for all the other countries. The application form is divided in three essential parts: a correctly identified owner, a clear representation of the mark and a list of goods and services.
  • Examination period. During this time the EUIPO undertakes several actions including: classification, analysis of the formal aspects of the application, absolute grounds for the application are checked (the trademark is analysed to see whether it is distinctive but not descriptive), translation and research. If any errors are found, the EUIPO informs the applicant so that they can be remedied. Sometimes, if it is a simple clarification, the person checking the application may call the applicant over the phone for details.
  • Publication and opposition. From the date of publication onwards, third parties who believe the trademark should not be registered have three months to object. If a trademark registration is objected to, the following opposition procedure is opened:
    • An opposition is filed with the EUIPO
    • The Notice of Opposition is checked to see if it meets requirements and is considered acceptable or not.
    • If the Notice of Opposition is accepted, both parties are asked to present arguments and evidence.
    • The EUIPO then issues a decision that puts an end to the proceedings.
  • Registration and publication of the registered trademark. If nobody files an opposition (or if any oppositions have been resolved in favour of the applicant) then the EUIPO registers the trademark, makes it public free of charge and issues a registration certificate. It is advisable that the applicant downloads this certificate.

Once the brand has been registered, the applicant can use the  ® symbol and add the letters MC EU after the trademark. In some countries it is a criminal offence not to use the symbol once a trademark has been issued.

If you wish to register your trade mark in only some of the European countries, it is better to register the brand locally, in accordance with the national system of each country.

What needs to be done after registering with the EUIPO?

Registering the brand at European level is only the beginning of the trade mark’s lifecycle. The registration is valid for 10 years. During that time period it is important to bear in mind some key factors:

  • Renewal. The trade mark protection can be renewed indefinitely. Renewals cost 850 euros for one class, 50 euros for the second class and 150 euros for the third and more classes. If you decide not to renew your trade mark within the European Union, all the rights you had over that trade mark disappear.
  • Use. The purpose of your trade mark is to distinguish your goods and/ or services from those of your competitors in the market. If you do not use it, third parties can challenge your trade mark for non-use.
  • Defend. Just because a third party did not challenge your trade mark when you were applying for it does not mean that they cannot file observations or challenges afterwards. A procedure begins in which an agreement can be reached or the position of the EUIPO is adopted.

Whatever the case may be, it is important to count on the support of experts in patents and trade marks when registering, renewing or defending a trade mark. These experts know the steps that need to be taken and understand the rules.

What are the benefits of registering for a European trade mark?

Registering a European trade mark via EUIPO has the following advantages:

  • With one sole registration, the trade mark is valid across the whole of the EU.
  • The registration can be done online.
  • Registering a European trade mark gives the owner exclusive rights that extend across the whole of the EU, solely for the owner to use.
  • If new countries were to join the EU, the trade mark would be automatically protected in those countries too.
  • The trade mark is protected for ten years and can be renewed indefinitely over successive ten-year periods.

As explained above, registering a European trade mark is essential for protecting your intellectual property rights when you begin to operate in another European country, showing how your products and services differ in the market.

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American Tower in €2 Billion and $2.2 Billion Offerings

Cleary Gottlieb represented American Tower in an SEC-registered offering of €750 million aggregate principal amount of 0.45% senior notes due 2027, €750 million aggregate principal amount of 0.875% senior notes due 2029, and €500 million aggregate principal amount of 1.25% senior notes due 2033.

The notes are listed on the New York Stock Exchange. The offering was underwritten by a syndicate of investment banks led by Merrill Lynch International, J.P. Morgan Securities plc, Mizuho International plc, Morgan Stanley & Co. International plc, and The Toronto-Dominion Bank. The transaction priced on May 18, 2021, and closed on May 21, 2021.

Cleary also represented American Tower in an SEC-registered offering of 9.9 million shares of common stock. The offering was underwritten by a syndicate of investment banks led by BofA Securities Inc., Barclays Capital Inc., Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, and RBC Capital Markets LLC. The transaction priced on May 5, 2021, and closed on May 10, 2021. The underwriters exercised their over-allotment option to purchase an additional 900,000 shares of common stock in full on May 5, 2021.

American Tower owns, manages, develops, and leases communication and broadcast tower sites in the United States and around the globe. American Tower began operating as a real estate investment trust (REIT) for federal income tax purposes effective January 1, 2012.