Voluntary payments into a retirement savings plan (PER): employees need to be better informed about the tax consequences of their choice

Facts

In 2020, Mrs G wanted to make a voluntary payment into her employee retirement savings plan (collective company PER) for which she was eligible under her employment contract. She had at her disposal a sum of €40,200 from the sale of a property, a sum greater than her annual income.

Concerned about the tax consequences in the event of the early release of the sums invested, and with a future project to buy her main residence, she contacted her employee savings scheme account keeper specifically to obtain precise information about the taxation of the planned transaction.

During a telephone conversation, a member of staff allegedly confirmed that it was possible to make a deductible voluntary payment without the sum withdrawn being taxed in the event of early release.

On the basis of this information, Mrs G made a voluntary investment of her €40,200, which was deductible from her income at the end of December 2020. As a result, her tax liability for 2020 income was reduced to 0 euros when she submitted her tax return in June 2021, and the sum of 1,190 euros that had already been withheld at source was reimbursed to her in full.

In April 2021, she requested early release of this sum following the purchase of her main residence.

However, when Mrs G submitted her 2021 income tax return in May 2022, she discovered that the amount released had been pre-entered in box AI (Salaries, wages, pensions, annuities) and that it was taxed at 12,018 euros.

Mrs G immediately contacted her account keeper for an explanation.

The latter then confirmed that, as the amount invested had been tax-deductible on entry, it had been automatically reintegrated into taxable income in full on exit.

Believing that she had been the victim of a serious lack of information at the time of her payment, Mrs G contacted me to ask me to intervene with her account keeper to resolve this dispute. 

Investigation 

First of all, it should be recalled that I am not authorised to interpret tax provisions, nor to intervene when the complaint is tax-related. On the other hand, I can take up a case if the institution's error, which is the subject of the dispute, is not tax-related, but has prejudicial tax consequences, which seemed to me to be the case in Mrs G's dossier. I therefore questioned her account keeper with a view to investigating the dispute from the perspective of the information provided to Mrs G.

In response, this establishment told me that an information sheet available on its online space for savers sets out all the tax rules applicable to the PER.

I have noted that this sheet clearly states, with regard to deductible voluntary contributions when investing in a collective company PER, that these plans allow a tax exemption to be applied to the taxable income for the year of the payment but, in return, that the said sum is then taxed in the event of early release of the assets, in particular for the "purchase of the main residence".

However, I noted that Mrs G did not base her decision on the information on her account keeper's website, but took the trouble of contacting customer services by telephone beforehand to obtain the information she required.

I was able to obtain a telephone recording of the conversation that took place prior to the disputed payment, which I listened to carefully.

In accordance with what Mrs G had told me in her referral letter, I was able to verify that during this telephone conversation, clearly erroneous information, contrary to that appearing on the account keeper's website, had in fact been provided to her at length. The telephone advisor had told Mrs G that her voluntary tax-deductible payment would not be taxed in the event of early release for the purchase of her main residence.

I felt that this erroneous information had been a decisive factor in Mrs G's decision to make a deductible voluntary payment which, in her specific case and because she was planning to release the assets in question in the near future, led to an excess of tax which she had never been in a position to assess. 

Recommendation

In view of the particular circumstances of this dossier, it appeared to me that Mrs G clearly had no interest in taking advantage of a tax saving of 1,190 euros in 2020 (the year of her payment) only to be taxed one year later a sum of 12,018 euros (the year of her release), given the size of her voluntary payment, which was in excess of her annual salary.

All the evidence points to the fact that she would clearly have chosen to forego the deduction on entry had she been properly informed. 

By providing her with inaccurate information, I considered that the account keeper had caused direct prejudice to Mrs G in the form of lost opportunity. The probability that she would then have chosen not to be taxed on exit seemed sufficiently high to me, given that this taxation amounted to 90% of the induced loss.

I therefore took the view that the account keeper should compensate Mrs G for 90% of her excess tax liability, after deduction of the tax advantage on entry and the tax she owed on her income, i.e. the total sum of 8,606 euros.

The account keeper agreed to make this payment to Mrs G.

Lesson to be learned 

In addition to the human error committed by the advisor, in my opinion, this dossier brings to light all the complexities associated with the taxation of voluntary payments into PERs, which are not, moreover, subject to any cap[1].

As explained on the Semaine de l’Epargne Salariale (Employee Savings Week) website[2], employees can choose tax deduction at entry, which is capped, based on their marginal tax bracket, their need to reduce income tax at a given moment, and the change in this bracket that the employee anticipates either at the time of retirement or of exercising early release options.

It is also important to note that in the absence of an option being exercised, Article L224-20 of the Monetary and Financial Code stipulates that deductibility on entry shall apply by default. The assumption behind this rule is that the saver will generally be taxed at a lower rate when the unavailability period is lifted, since this occurs, in principle, at the time of retirement, which is often associated with a significant drop in income.

However, reinstating the sum of voluntary payments into the taxable income base can prove problematic, particularly when unavailability is lifted as a result of early release for the purchase of a main residence. In this scenario, it should be recalled that the sums paid in, and deducted from taxable income up to the limit of the retirement savings cap[3], are reintegrated, and this time in full, into taxable income, without the flat-rate 10% allowance, even though this event may occur well before retirement, at a time when the saver's income is equal to or higher than what it was at the time of the payment. This can result in an unexpected and sometimes very significant additional tax liability.

In these circumstances, I think that it is necessary for account keepers to reinforce the clear, accessible and comprehensible information about taxation options, especially as employees may naturally be seduced by the immediate tax advantage of a voluntary deductible payment.

This information, which, for several retirement savings account keepers can only be accessed proactively (information sheet made available to savers on their website), should also be provided automatically.

In fact, the only way to enable investors to make an informed choice and to understand all the tax consequences associated with the deductibility of their payments would be to provide them with information directly and personally at the time of their voluntary payment:

- By opting for the voluntary payment to be deductible on entry, the amount, up to the aforementioned cap, will be immediately deducted from taxable income. In return, this amount will be fully reintegrated into the saver's taxable income on exit, whether this is due to retirement or early release;

- By choosing, on the other hand, not to deduct the voluntary payment on entry, the saver will not enjoy any tax advantage, however the sum of their payment will, in return, be exempt from reintegration into taxable income on exit.

This distinction can only be fully understood by savers following specific, clear and comprehensive information, which is the only way to prevent potential disputes involving potentially large sums of money. This is all the more true given that the law provides for a default choice of deductibility on entry.