Section
4 : Registration and stamp fees
§
1. The stationary fees
§
2. The proportional registration fees
tariff and base
§
3. The progressive and variable fees
§
4. Exonerations
§
1. The different types of imposition
§
2. Field of application, tariffs and indebted of the stamp fee
§
3. Exonerations of the stamp
§
4. Modes and delays of payment of the stamp
§
1. Principle
§
2. Base of the tax
§
3. Generating fact of the tax
§
4. Rate of the unique tax on insurances
Section
4 : Registration and stamp fees
Registration
fees are specific taxes that hit some legal mutations and acts. They are
generally perceived when presenting the act that serves as title to the
operation at the time of the registration formality achievement.
Nevertheless, at lack of act, some operations are submitted to the
registration on the basis of the subscription of a declaration to the
receiver that achieves the registration.
Under-section
1. Liquidation of registration fees
Fees
are stationary, proportional or progressive according to the nature of
acts and mutations that are subjected for.
We
distinguish between the stationary fee on the page, the stationary fee
to on act and the perception minima. Besides, a progressive fee of
subscription and remittance is owed on operations carrying increase of
the subscribed capital of public companies and a research royalty.
1)
Mutations of building to costly title
a)
Basis tariff:
Are
registred to the proportional fee of 5%:
-
Sales, transfers, retrocessions, adjudications, adjudications to the mad
bid or on overbid, acquirements by way of licitation and
all other civil and judicial acts which are translative to costly title
of property, of usufruct, of high cloud-property of possessions building
and servitude.
The
retrocession is a resale made by the purchaser to the seller. It
constitutes a new mutation giving opening to a new proportional fee.
-
Transfers of shares or parts conferring to their possessors the right to
the enjoyment or the property of buildings or fractions of buildings:
transfers of shares or parts conferring to their possessors a right to
the enjoyment or the property of buildings or fractions of buildings are
reputed having for object transfers of possessions represented by these
titles, and it is made application, for the perception of the
registration fee on the aforementioned transfers, of all relative rules
to the sale of building.
b)
Conditions of current liability of the proportional right:
According
to REFALO, «three conditions are necessary for the immediate
application of the proportional fee of 5%:
-
It is necessary that the sale united all elements of perfection foreseen
by the article 580 of the C.O.C;
-
That it carries on possessions really having the character of buildings;
-
That it is not affected of a suspensive clause that prevents the current
liability of the proportional fee».
c)
Base:
Except
special arrangements relative to certain mutations of buildings, the due
registration fee on sales of buildings and assimilated operations is
liquidated on the expressed price raised of loads in capital. It would
seem that it was the price VAT included when the transfer is submitted
to the VAT.
d)
Complementary fee for defect of mention of the property origin:
A
complementary fee of 3% is due on authenticated acts or under private
signature carrying away mutation between sharp of property, high
cloud-property or usufruct of possessions building or touching to the
legal situation of buildings that doesn't make mention of the property
origin and if necessary the justification of the payment of the
registration fees pertaining to the previous transmission.
Mention
of the origin that it would be better to specify in the act so that it
is not liable of the complementary fee of 3% is constituted by
references of the registration of the previous mutation and not only the
origin of property to the sense of the civil law.
Nevertheless,
the fee for defect of mention of property origin is restituted to parts
if they produce the requisite justifications, on authorized time.
All
enrollment on the property’s book of a mutation of a real-estate right
which is real results in the payment of a proportional fee of 1% as fee
of the conservation of the property.
It
is the same thing, except legal exceptions, of all registration of a
building, of the enrollment of mortgage or a privilege on this building.
By
derogation to the tariff of 1%, the fee of the property’s conservation
due to the constitution and to the radiation of mortgage or privilege to
guarantee a banking loan is reduced to 0,2% of the main amount of the
aforementioned loan.
2)
The exchange of building:
The
exchange of building gives place to a unique registration fee of basis
of 2,5% calculated on the value of one of buildings if the exchange
takes place without boot nor capital gain or on the value of the weakest
share in case of boot or capital gain.
For
the surplus constituted by the boot or the capital gain corresponding to
the difference of value between the two exchanged buildings, the
registration fee is due to the rate of 5% by the one that pays for the
boot or benefits from the capital gain.
3)
The mutation of goodwill, clientele and lease renewal to costly title:
Are
registered to the proportional rate of 2,5%, sales of goodwill,
clientele and lease renewal.
The
due registration fee on sales of goodwill or clientele is liquidated on
the selling price of the clientele, of the patronage, of the transfer of
the lease renewal and furniture objects or others, serving to the
exploitation of the goodwill possibly raised of expenses in capital.
The
base liable of proportional fee is constituted by the global price of
the given up goodwill that must obligatory include the patronage or the
clientele.
When
an element making part of the goodwill is sold solely, it is submitted
to its specific regime of registration.
As
example, the patent sold with the goodwill is submitted to the
proportional fee of 2,5%. However, a patent given up separately is not
submitted by reason of its nature to the obligatory registration. It is
the same thing for furniture goods or merchandises.
Of
course, any change including the clientele constitutes a submissive
change to the proportional fee of 2,5%.
4)
The right of sharing:
a)
Tariff: Are registered to the proportional fee of 0,5%, sharings of
buildings between co-owners to any title that it is as well as the
sharing of furniture goods making part of a succession or the asset of a
society.
Nevertheless,
the repossession by a contributor in kind of the constituting elements
of certain bodies doesn't give opening to the right of sharing. However,
the assignment of building brought by a partner to another partner gives
place to the right of building mutation.
However,
boots or capital gains resulting from a sharing of building are
submitted to the basic proportional fee of 5%.
Concerning
the property’s conservation fee to the rate of 1%, it is always due on
the consecutive mutations to the sharing.
b)
Base: The due registration fee on sharings of furniture goods and
buildings is liquidated, to the condition that the co-ownership is
justified, on the amount of the shared net asset, deduction made of the
submitted values to the due registration fee on boots and capital gains
carrying on buildings.
5)
the renting of building and goodwill:
Are
registered to the proportional fee of 1%, leases of building possessions
other than those intended to the dwelling and their tacit renewal, as
well as subleases, subrogations, transfers and retrocessions of building
possession leases, as well as renting of goodwill.
The
due registration fee on enjoyment mutation of buildings or goodwill is
liquidated on the yearly price (that is a sum corresponding to the rent
of one year) expressed in the act or the declaration increased of loads
imposed to the taker.
6)
The public sales of furniture possessions:
Are
registered to the proportional fee of 2,5% the public sales of furniture
possessions to the exception of public sales bound to agriculture that
are registered to the stationary fee of 10 dinars by page.
When
an act has for object the simultaneous mutation of property of furniture
and building possessions, the registration fee is perceived on the
totality of the price to the applicable rate to building sales, unless
it is stipulated in the act a particular price for furniture and that
these furniture are not appraised and clearly designated in the contract.
7)
Judgements and court decisions:
Except
exceptions foreseen by the law, judgments and court decisions are registered to the proportional fee of 5%.
The
due registration fee on judgments and court decisions are liquidated on the amount of pronounced condemnations or
liquidations.
When
the proportional fee has been acquitted on a given back judgment in
first process, the perception of fee on judgments or court decisions that can intervene in call takes place, if the case arises, only on the
supplement of pronounced condemnations or liquidations.
When
a judgment or a court decision given back in call fix an amount of
condemnation or liquidation inferior to the one pronounced to the first
degree, the too much perceived is restorable until the end of the three
year delay to count of the day where fees became restorable following a
judgment or a court decision.
The
proportional fee on judgments is not payable when the judgment or the court decision
forms the title of a mutation to costly or free title of building,
goodwill or clientele.
When
they don't give opening to the proportional fee, judgments and court decisions
are liable of the perception minimum.
Parts
that are not condemned to costs register the judgments or court decisions
in return for the payment of the minimum fee at loads for them to acquit
the proportional fee surplus on the regained sums as concerning deducted
at source taxes.
The
decision so registered to the minimum fee is reputed not registered to
the consideration of parts condemned to costs.
The
acquitted stationary fee is imputed on the proportional fees.
Are
submitted to the progressive and variable registration fees:
-
Acquirements of lands intended to the individual building construction
to use of dwelling;
-
Donations and successions.
Donations
and successions are registered to the following variable fees:
-
Between ascendants and descendants and between spouse : 2,5%
-
Between brothers and sisters : 5%
-
Between uncles or aunts, nephews and nieces, big uncles and big aunts
and small nephews or small nieces and between cousins : 25%.
-
Between parents beyond the fourth degree and between non-related people
: 35%.
Exonerations
of the registration fee result of arrangements of common right and
special arrangements instituted by different fiscal advantage regimes.
But first of all, it would be better to distinguish between the regime
of exoneration and the regime of non-submitted acts to the obligation of
registration.
1)
Distinction between exoneration and defect of obligatory registration:
Whereas
an act exonerated of the registration fee is an act obligatory submitted
to the registration but that receives the formality FREE, the
presentation to the registration of an act which registration is
optional is liable of the stationary fee to the tariff of 5 dinars by
page.
2)
Common right exonerations:
-
Contracts of marriage.
-
Exoneration of the incorporation to the capital of the legal reappraisal
reserve.
3)
Exonerations according to regimes of fiscal advantages:
The
fiscal advantages can either curb registration fees, or institute a pure
and simple exoneration or to permit the repayment of paid fees.
Exonerations
instituted according to the fiscal advantage regimes are numerous. To
the number of acts and operations exonerated of the registration fee, we
can mention:
-
Exoneration of registration fees of fully exporter enterprises governed
by the code of incitements to investments.
-
Exoneration of registration fees of enterprises established in the
economic straightforward zones.
-
Exoneration of registration fees and fiscal stamp of mutation acts to
costly title between non-residents carrying on tourist residences
achieved in the context of a tourist project and acquired by convertible
currencies by non-residents as definite by the article 5 of the code of
changes and the outside trade (article 59 of the code of incitement to
investments).
The
restitution of registration fees is possible in case of mistake in the
liquidation of fees, in case of annulment of a contract by way of
justice, in case of requisite justification production for debts
burdening a succession, in case of judgment in call invalidating a
previous judgment, in case of return of an absent declared deceased, in
case of identification a posteriori of the property origin, in case of
justification a posteriori of the date of birth of an usufructuary been
born abroad, or in the context of the fiscal advantages granted to the
agricultural investments.
Delay
for the restitution: Except special delays, the action in
restitution of the sums over-perceived must intervene in a maximum delay
of three years to count the date to which the tax became recoverable and
at the latest within five years to count the payment of the tax. This
stop of five years doesn't apply to recoveries been born of a judgment
or a court decision of justice.
1)
Restitution after a mistake of parts or the administration :
Are
recoverable fees unduly or irregularly perceived due to a mistake of
parts or the administration.
The
restitution is granted after deduction of the stationary fee that
constitutes in this case a minima of perception.
2)
restitution after a judicial annulment of the sale :
In
case of rescission of a contract because of lesion or annulment of a
sale because of hidden vices and, in all other cases where there is
place to annulment, perceived fees on the annulled, resolute or
rescinded act are recoverable only if the annulment, the resolution or
the rescission has been pronounced by a judgment or a court decision having
the strength of judged thing.
However,
are not recoverable fees regularly perceived on acts or contracts either
dismissed or resolute by the effect of a resolution, conventional,
explicit or tacit condition.
The
pronounced annulment, revocation, resolution or rescission, for any
reason that can be, by judgment or court decision,
does not result in the perception of registration fees on mutations.
3)
Restitution for production of the requisite justifications of debts
burdening a succession :
When
a debt burdening the successional asset to the day of the opening of the
succession has not been deducted for lack of requisite justification
production, the over-liquidated corresponding fees can make the object
of a restitution on requisite justification production for debts
burdening the succession.
4)
Restitution following the invalidation of a judgment (revision in
decrease or pure and simple annulment of the initial condemnation amount) :
The
judicial decisions that merely confirm a condemnation in first spring
are registered to the minima of perception on judgments and court decisions.
Concerning
invalidating decisions of reject judgments, they are registered to the
proportional fee of 5% on the amount of the condemnation.
However,
invalidating decisions of condemnation judgments are liable of the
perception minima, but the over-perceived proportional fee in relation
to the judgment intervened in first spring becomes recoverable.
5)
Restitution of succession fees after return of an absent declared
deceased :
The
succession of absents (extinct people) is opened to count the date of
pronouncement of the disappearance judgment. It is registered in the
delay of one year of the date of pronouncement of the aforementioned
judgment.
In
case of return of the absent, registration fees paid on its succession
are recoverable in two limits:
(1)
Limit of amount: The restitution of registration fees is achieved
under the deduction of liquidated fees on the amount of sums and values
of which have enjoy those having right.
(2)
The limit of the restitution delay.
6)
Restitution for justification a posteriori of the property origin (reference
of the registration of the previous mutation) :
The
fee of origin of property of buildings of 3% is recoverable if parts
produce the requisite justifications within the time limits.
7)
Partial restitution of paid fees on the basis of the maximal base of
usufruct contracts:
Mutations
to free of usufruct or naked property are liquidated on the basis of a
scale of ventilation of the property value applicable according to the
age of the usufructuary.
It
results from this that acts and declarations carrying away mutation to
free of usufruct or naked-property must include the birth date and place
of the usufructuary. If the birth occurred out of Tunisia, the age of
the usufructuary must be justified at the time of the formality of
registration. To defect of justification, fees are liquidated on the
basis of the highest base.
Nevertheless,
the over-perceived is recoverable, if the act of birth, in case that
this last took place out of Tunisia, is presented within a delay of tow
years.
8)
Restitution of registration fees paid for the acquirement of an
agricultural land intended to an agricultural investment:
To
terms of the § 4 of the article 30 of the code of incitements to
investments, investments achieved in context of the aforementioned code
open right to the repayment of mutation fee of the agricultural lands
destined to the investment on demand of the purchaser.
To
avoid foreclosure, the demand of restitution must be presented one year
at the latest after the declaration of the investment.
Under-section
3. The stamp fee
The
stamp fee is an applicable tax to certain acts or manuscripts. It
constitutes also a mean of payment of the cost of some formalities and
some documents provided by the public administrations.
We
distinguish between:
-
Stamps called of dimension;
-
Stamps of commercial papers;
-
Stamps of international transport contracts;
-
Stamps of receipt;
-
Stamps pertaining to the deliverance of certain administrative
documents;
-
Lawyer's stamps;
-
The special stamp of journey.
1)
field of application:
Stamp
fees apply to acts, manuscripts and administrative formulas expressly
taxed by the law.
2)
applicable tariffs:
Tariffs
of the stamp are fixed according to the case to 0,2D, 0,3D, 1D, 1,5D,
2D, 3D, 5D, 10D, 15D, 20D, 25D, 30D, 45D and 100D.
3)
Indebted of the stamp:
The
code of registration and stamp fees institutes the rule of the
intervening party solidarity except for acts concluded by individuals
with the State.
Exonerations
of the stamp result from arrangements of the code of registration fees,
of arrangements of the code of work and different fiscal advantage
regimes.
The
payment of the stamp fee takes place according to one of the following
processes:
(1)
by mobile stamp apposition;
(2)
by the use of paper stamped or paper having a determined value;
(3)
on state;
(4)
by mean of the visa of the Finance Conductor.
(5)
on declaration in case of utilization of a machine to stamp.
Under-section
4. The unique tax on insurances
The
unique tax on the insurances makes part of registration fees. In
addition of the unique tax, it is owed a contribution on bounties of
insurance to the profit of the administrative control of civil
protection.
The
unique tax on insurances applies, except legal exonerations, to all
insurance contracts, life annuities and capitalization concluded with
insurance enterprises whatever are the nature of insured risks and the
place of conclusion of these contracts.
The
base of the tax is constituted by the amount of emitted bounties or
contributions given out and of all accessories as expenses of contract
stipulated to the profit of the insurer.
The
generating fact is constituted by the date of bounty or contribution
emission, whatever is the date of conclusion of the contract or the one
of the efficient recovery.
The
unique tax on insurances is owed to the following rates:
(1)
The rate of 5% applicable to insurance contracts of risks of the
maritime and aerial navigation and insurance contracts related to the
agricultural and fishing risks.
(2)
The rate of 10% applicable to insurance contracts of risks in all other
matters of insurance.
It
is notably concerning :
-
The automotive insurance for the cover of the civil responsibility of
the driver and damages bound to vehicles (collision, flight, fire, all
risks… ) ;
-
the insurance of responsibility that covers damages of all nature caused
to third parties;
-
the insurance of damages of all nature caused by conflagration, kindling
or combustion ;
The
insurance groups illness for the cover of risks of illness or risks
carrying reach to the physical integrity of the insured person or bound
to the motherhood.
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