Ursaff control: undergo or act? Book excerpt – EconomieMatin


Introduction

A few figures provide a better understanding of the importance of URSSAF control and litigation in our country. The 22 regional URSSAFs (plus the four CGSSs in the overseas departments and a CCSS in Lozèr e) carry out 85,000 checks each year, almost three times more than for the tax administration. 9 out of 10 inspections of medium-sized companies end with an adjustment. Going further in the statistics, we note that control is a source of stress for 39% of contributors. However, only 27% of companies dispute the results of their audit. The purpose of this practical little book is to take stock of an often unrecognized law by following step by step the stages of verification, contestation and then litigation. First, it recalls the different types of control, then, the powers of the inspectors, the scope of the control, its consequences and the various options of the debtor. In this same document are gathered the texts, the case law as well as the models of current use. To students, professionals and employers, it tries to offer a complete panorama on this issue so that no one is infringed on their rights.

Chapter 1 Two or three things that: you should know in your relations with URSSAF…

When the employer is faced with a due diligence by URSSAF, he may be tempted to cling to a few common sense principles that he intends to implement when the day comes … However, we know that in Social security, common sense and legality do not always go hand in hand.

The difficulties of opposing the doctrine of the administration to URSSAF

Item L. 243-6-2

– When a contributor has applied the legislation relating to social contributions and contributions according to the interpretation accepted by a circular or an instruction from the Minister responsible for Social Security, published in accordance with Book III of the Code of relations between the public and the administration or under the conditions provided for in Article L. 221-17 of the same Code, the bodies mentioned in Articles L. 213-1, L. 225-1 and L. 752-4 may not request a rectification or, when a control, proceed to any adjustment of contributions and social contributions, for the period during which the contributor applied the interpretation then in force, by supporting an interpretation different from that accepted by the administration.
– This article applies to the institutions mentioned in article L. 922-4 as the interpretation accepted by the instructions and circulars mentioned in I of this article relates to the legislation relating to the degressive reduction of social contributions mentioned in Article L. 241-13, on the provisions provided for in Articles L. 241-10 and L. 752-3-2 or on any point of law the application of which is likely to have an impact on the reductions relating to on the contributions payable by the employer due under the legally compulsory supplementary retirement plans mentioned in Article L. 921-4. – As of January 1, 2019, a website presents all the instructions and circulars relating to the applicable legislation in terms of reductions and reductions in contributions and social contributions made available to contributors.

Item R. 243-59-8

The inspected person can take advantage of the application of a circular or an instruction specifying the interpretation of the legislation in force for the attention of bodies carrying out the collection and control of social contributions and contributions, taken under the conditions mentioned in Article L. 243-6-2. His request is admissible as long as the amounts assessed for a situation covered by this circular or instruction are not final.

The body carrying out the recovery informs the inspected person within two months of receipt of the request mentioned in the previous paragraph, by reason for adjustment, of the amounts which, if applicable, are canceled as well as, by reason for adjustment, the amounts for which it remains liable under the formal notice provided for in Article L. 244-2.

Our legal system, in addition to laws and regulations, includes an incalculable number of circulars explaining the interpretation of the administration (Ministry of Social Affairs or ACOSS (Central Agency of Social Security Bodies) on a specific point or even creating tolerances vis-à-vis users In tax matters, the question does not pose any problems since article 80 A paragraph 2 of the book of tax procedures provides that ” when the taxpayer has applied a tax text according to the interpretation that the administration had made known through its instructions or published circulars and that it had not reported to the date of the transactions in question, it may not pursue any increase by supporting a different interpretation “.

In the past, the Court of Cassation had considered, for lack of precise text, that the instructions of ACOSS, the ministerial circulars or the ministerial responses, were only intended to facilitate the tasks of the URSSAF by explaining the position of the administration on a specific point 1. It therefore clearly resulted from this that a ministerial instruction, or a circular from ACOSS, was devoid of binding force and could not, in any way, be of a nature to restrict the rights of URSSAF2. Paradoxically, therefore, a scrupulous contributor, who had followed an instruction from ACOSS or who had applied an administrative circular, could find himself rectified by URSSAF on the basis of a different interpretation. This remark was not neutral when we know that today, many areas are governed, essentially, only by administrative circulars3. Henceforth, article L. 243-6-2 of the Social Security Code resulting from ordinance n ° 2005-651 of June 6, 2005 strengthens the legal security of contributors by allowing them to oppose the doctrine of administration under specific conditions.

In the first place, for the contributor to have an interest in invoking this doctrine, this obviously supposes that the position expressed therein is favorable to the person concerned.

In addition, they must be circulars or instructions from the Minister responsible for Social Security, published in accordance with Law No. 78-753 of July 17, 1978, relating to various improvement measures between the administration and the public or in the conditions provided for in article 5-1 of ordinance n ° 2004-164 of February 20, 2004, relating to the modalities and effects of the publication of laws and certain administrative acts. In practice, therefore, ” a circular or instruction regularly published in the Official Bulletin of the Ministry, in printed or electronic form “4. Thus, the publication in the Official Journal of a ministerial response does not give entitlement to this guarantee. Finally, we will insist on the fact that these texts must emanate from the Minister in charge of Social Security, which excludes circulars emanating from ACOSS.

This text has been supplemented by article R. 243-59-8: the contributor can take advantage of the application of a circular or an instruction specifying the interpretation of the legislation in force for the attention of URSSAFs. . His request is admissible as long as the amounts assessed are not final. The collection agency informs the contributor within two months of the request of the amounts which, if applicable, are canceled.

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