Under French tax law, each person may declare only one primary residence. This rule seems straightforward, but things become more complicated when a married or civil-union couple lives in two separate homes for work or family reasons. A recent Conseil d’État ruling clarified that, for council tax purposes, primary residence status is assessed for each taxpayer individually, even within a couple taxed jointly.
Income tax and council tax: two distinct tax rules
The most common misconception is that a couple filing a joint income tax return automatically shares the same primary residence for all tax purposes. That is not the case.
For income tax, a tax household has only one address. Married couples and civil partners file jointly, and the address on the return serves as the tax authorities’ reference. However, whether a couple can have two primary residences as a couple is a separate question for council tax, a local tax linked to each occupant and each property.
The Conseil d’État has confirmed this distinction: council tax is assessed based on each spouse’s individual circumstances. In theory, therefore, spouses who are jointly assessed for income tax can each claim a different primary residence for council tax purposes.
A couple’s primary residence: the evidence required by the Conseil d’État
The Conseil d’État ruling does not create an automatic right. It sets out a framework for assessment, but the burden of proof remains substantial.
In the case before the court, a wife challenged the council tax levied on her apartment in Lyon, which she considered her primary residence. However, the couple’s joint income tax return listed a different address in Caluire-et-Cuire. The judge found that the tax address alone did not settle the matter, but that the documents submitted by the taxpayer were also insufficient.
Evidence the judge considered insufficient
The taxpayer had submitted her passport, vehicle registration document and payslips showing her Lyon address. These purely administrative documents did not convince the Conseil d’État. They prove a mailing address, not actual occupancy.
What could have strengthened the case
Accounts of this case highlight the importance of evidence relating to the actual use of the property:
- Water, gas or electricity bills, which can help establish how often and for how long the property is occupied
- Bank statements showing everyday spending (groceries, transport) near the property claimed as the primary residence
- Letters from local schools or doctors, if children or the taxpayer are registered or receiving care there
The decisive factor remains whether the property is genuinely occupied. A property used only occasionally cannot be classed as a primary residence, even if the taxpayer is officially registered at that address.
Marital status and primary residence: marriage, civil partnerships and cohabitation
The rules vary depending on the couple’s legal status.
Married couples and civil partners form a single tax household. Their income tax return lists one address. For income tax purposes, the household therefore has one primary residence. The possibility of having two primary residences applies only to council tax on second homes, under recent case law.
Unmarried cohabiting partners, by contrast, each file their own income tax return and declare their own address. There is therefore nothing to prevent each partner from having a primary residence, including for income tax purposes, since they do not form a joint tax household.
This difference in treatment has direct consequences. If a married couple lives in two different cities, one of the homes will be taxed as a second home for income tax purposes, with the corresponding surcharges. An unmarried couple in the same situation can declare two separate primary residences without any legal difficulty.
Practical consequences since council tax on primary residences was abolished
Since 2023, council tax on primary residences has been abolished. It now applies only to second homes and vacant furnished properties. This change makes the classification of a property even more important financially.
If one spouse’s home is classified as a second home, it remains subject to council tax. In some municipalities in high-demand areas, a surcharge on second homes also applies. The combined amount can represent a significant expense.
In addition, primary residence status determines eligibility for other tax benefits. The capital gains tax exemption on the sale of a property applies only to a primary residence. A couple selling a property classified as a second home will be taxed on the gain.
A property’s classification also affects the tax on vacant homes, which applies in certain municipalities. A property that the tax authorities consider not to be occupied as a primary residence may be subject to this tax, even if the owner believes they live there for part of the year.
The Conseil d’État ruling opens up a possibility, but offers no guarantees without a strong case. Each situation depends on actual occupancy, the supporting documents submitted and the couple’s legal status. Before taking any action, gathering evidence of actual occupancy remains the most useful precaution when asking the tax authorities to recognise a property as a primary residence.
