OD FLASH | URSSAF reassessment – Effect of implied prior agreement not to be liable – Supplementary pension

Cour de cassation, civile, Chambre civile 2, 27 juin 2024, 22-18.178, Publié au bulletin

This judgment illustrates the rules to be followed by a company wishing to challenge a URSSAF Social (security collection agency) reassessment of social charges in court.

It provides useful clarification in cases where a tacit agreement from URSSAF not to assess social charges on an element of remuneration (tacit agreement of non liability) is subsequently challenged by successive URSSAF reassessments.

According to Article R. 243-59 of the Social Security Code (in the version applicable to the years in dispute), the absence of observations or the acceptance of a practice by the URSSAF following an audit of a contributor constitutes tacit agreement with the practices that gave rise to the audit, provided that the collection agency had the means to take a fully informed decision and until it notifies the contributor of a decision to the contrary.

In this case, the company was subject to a URSSAF audit for the years 2015-2017 and was reassessed, in particular, with regard to the employer’s contributions to the financing of the supplementary pension plan (letter of observations dated 29 October 2018).

The company challenged this decision in court and is appealing the lower court’s decision, in particular insofar as it confirmed the URSSAF’s reassessment of the supplementary pensions. It argued that the URSSAF had provided for an adjustment in respect of these supplementary pension contributions in a previous audit covering the years 2011-2012 (letter of 8 August 2013), but that it had dropped this head of adjustment in a letter of 4 October 2013, considering that the years 2011-2012 were covered by a tacit non-liability agreement on its part. Furthermore, since this first reassessment had been cancelled by a court decision of 3 February 2016, the company argued that the previous tacit agreement of non-liability was still valid for the years 2015-2017.

In its decision of 26 April 2022, the Nancy Court of Appeal rejected this argument and upheld the second reassessment, stating that :

– The company could not rely on the tacit agreement of URSSAF to oppose the second reassessment, as URSSAF had indicated in its letter of 4 October 2013 that it would apply the legal rule leading to the liability of these contributions in the future.

– The Court decision to cancel the first reassessment was based on a procedural irregularity and not on any substantive grounds, and could not call into question the decision taken by URSSAF on 4 October 2013 to make the contributions liable in the future.

The company appealed to the Court of Cassation.

The Court of Cassation dismissed the company’s appeal. Referring to Article R. 243-59 of the French Social Security Code, it held that the Court of Appeal had correctly concluded from all these elements that the contributing company could not rely on this prior tacit agreement to oppose the second revaluation relating to the years 2015 to 2017.

In so doing, it pointed out that :

– URSSAF’s notification of a decision to revoke a previous tacit agreement, before a new assessment, prevents the previous tacit agreement from continuing to have effect,

– and that a reassessment decision renders a previous tacit agreement ineffective, even if the reassessment is subsequently annulled by a court decision.

This last point may seem very harsh to contributors, especially as it is a ruling published in the Bulletin des arrêts de la Cour de cassation. However, it is important to remain cautious about its scope, given the particularities of this case.

The appeal judgment upheld the reassessment of employers’ supplementary pension contributions paid over the period 2015-2017 to a closed group of employees on the grounds that this closed group did not constitute an objective category of staff within the meaning of Article L. 242-1 of the Social Security Code. This appeal decision will be of interest to all companies faced with reorganisations involving staff transfer