Une société nouvellement constituée peut-elle rejoindre un groupe fiscalement intégré sans avoir clôturé au préalable un 1er exercice ?

Contrary to the administrative guidelines, the Marseille Administrative Court of Appeal considers that newly formed companies may be members of a tax consolidated group without first closing a financial year (CAA Marseille, 16 April 2026, No. 25MA02058).

Reminder of the rules for electing the tax consolidation regime

The election for the tax consolidation regime is made by the parent company no later than the deadline for filing the tax return for the financial year preceding the one for which the regime applies (FTC, Art. 223 A, III, para. 2).

Each subsidiary must give its consent to being a member of a tax consolidated group by means of a statement which it must file with the tax office no later than the deadline for filing the tax return for the preceding financial year.

The Tax Authorities consider that it follows from this provision that newly created companies must have closed a financial year before joining or forming a tax consolidated group (BOFiP-IS-GPE-10-40-§ 100-07/06/2017 - except in the specific case of Article 223 L, 6, d of the FTC - acquisition of more than 95% of a company that is itself the head of a group).

The facts

A first company, registered with the trade and companies register on 13 January 2014, gave its consent on 13 February 2014 to join the tax consolidated group.

A second company, registered with the trade and companies register on 21 March 2017, gave its consent on 20 April 2017 to join the tax consolidated group.

The parent company of the tax consolidated group therefore took into account, in determining its group result, the losses of these two consolidated subsidiaries: those of the first company from the financial year ended in 2014, then carried forward to the following years, i.e. 2015, 2016 and 2017; those of the second from the financial year ended in 2017.

Following a tax audit covering the financial years 2015, 2016 and 2017, the Tax Authorities challenged the inclusion, in determining the group result, of the losses incurred by these two consolidated subsidiaries, on the ground that the two companies had not closed a first financial year before joining the tax consolidated group.

The decision of the Marseille Administrative Court of Appeal

In holding that the losses of the two newly formed subsidiaries may be taken into account in determining the group result of the tax consolidated group, the Marseille Administrative Court of Appeal considers that Article 223 A of the FTC does not require companies wishing to join a tax group to close a financial year beforehand.

The administrative guidelines relied on by the Tax Authorities therefore add to the law a condition that it does not provide for, and cannot be relied on against the taxpayer (BOFiP-IS-GPE-10-40-§ 100-07/06/2017).

In reaching this decision, the Marseille Administrative Court of Appeal relied on the wording of Article 223 A, III of the FTC which, in its view, sets a time limit for formalising the subsidiaries' consent, and on the parliamentary proceedings of the 2004 Finance Act, which were intended to make the election procedure more flexible for companies.