SOCIAL SECURITY LAW SOCIAL SECURITY CONTRIBUTIONS
LexInter | November 15, 2006 | 0 Comments

SOCIAL SECURITY LAW SOCIAL SECURITY CONTRIBUTIONS

Mr. X … appealed in cassation against the judgment of the Court of Appeal of Paris (18th room B) dated September 28, 2000;

This judgment was overturned on March 25, 2003 by the social chamber of the Court of Cassation;

The case and the parties were referred to the Versailles Court of Appeal which, seized of the same case, ruled by judgment of April 7, 2004 in the same vein as the Paris Court of Appeal for reasons which are applicable. opposition to the doctrine of the judgment of cassation;

An appeal having been lodged against the judgment of the Court of Appeal of Versailles, the second civil chamber, by judgment of September 20, 2005, decided to refer the case to the Plenary Assembly;

The applicant invokes, before the Plenary Assembly, the means of cassation annexed to this judgment;

This unique means was formulated in a memoir filed with the registry of the Court of Cassation by Me de Nervo, lawyer Mr X ..;

A defense was lodged with the registry of the Court of Cassation by SCP Gatineau, lawyer for URSSAF;

The written report of Mr. Rouzet, advisor, and the written opinion of Ms. Barrairon, advocate general, were made available to the parties;

(…)

On the single ground:

Whereas, according to the judgment under appeal (Versailles, April 7, 2004), delivered on referral after cassation (soc., March 25, 2003, Bull ., N ° 110), only after having sent on October 12, 1994, October 26, 1994 and May 13, 1995, formal notices by registered letter with acknowledgment of receipt to the actual address of Mr X …, in order to obtain the payment of social security contributions falling under of the self-employed workers’ scheme for the period from July 1, 1991 to June 30, 1994, the union for the recovery of social security contributions and family allowances (URSSAF) made him signify a constraint on January 10, 1996;

Whereas Mr X .. criticizes the judgment to dismiss his opposition, to partially validate the constraint and to say the prescription not acquired then, according to the means:

1 ° / that the formal notice sent by URSSAF to have to pay the contributions and overdue increases constitutes a recovery decision which fixes the starting point of the action for the recovery of contributions; that by deciding that this formal notice was not of a contentious nature and that the rules of notification of acts provided for by the new code of civil procedure did not apply, the court of appeal violated Articles L. 244 -2 and R. 244-1 of the social security code, together article 670 of the new code of civil procedure;

2 ° / that any action or prosecution for the recovery of contributions due by a self-employed person is preceded on pain of nullity by a formal notice sent to the person of the debtor by registered letter with request for acknowledgment of receipt, the notification of which is deemed made to person when the receipt is signed by the addressee; that by stating that whatever the modes of delivery (to Mrs. X … or returned to the unclaimed sender) the disputed formal notices sent to the always effective address of MX … produced their full effect , the Court of Appeal violated Articles L. 244-2 and R. 244-1 of the Social Security Code, together with Article 670 of the new Code of Civil Procedure;

3 ° / that the interruption of a prescription can only take place when the interruptive act is brought to the attention of the person in whose favor the limitation period has run; that the warning or the formal notice sent for the recovery of social contributions can only concern contributions due in the three years preceding the date of receipt by the recipient of the notification; that by deciding that the three-year prescription had been interrupted by the date of dispatch of the formal notice, addressed by URSSAF to Mr X …, the court of appeal violated Articles L. 244-2, L. 244-3, R. 244-1 of the Social Security Code and article 670 of the new code of civil procedure;

But given that, unlike coercion, the prior formal notice issued by an URSSAF is not of a contentious nature and that the course of the limitation period referred to in Article L. 244-3 of the Social Security Code , in the wording applicable in the case, is interrupted by the sending of a registered letter with request for acknowledgment of receipt constituting formal notice; that having exactly held that the provisions of articles 640 to 694 of the new code of civil procedure are not applicable to this formal notice, the court of appeal correctly deduced that, whatever the modes delivery, the formal notices sent to the address of Mr X … could not be of no effect and that the claims referred to were not prescribed;

From which it follows that the plea is unfounded;

FOR THESE REASONS :

DISMISSES the appeal;


APPENDIX MEANS


Medium produced by Me de Nervo, Attorney at Law, for Mr X ..

MEANS OF TERMINATION

The plea criticizes the judgment under appeal from D’AVOIR states that the formal notice provided for by Articles L. 244-2, L. 244-3, R. 244-1 of the Social Security Code is not of a nature contentious; says that the provisions provided for in Book 1, Title XVII of the new Code of Civil Procedure are inapplicable; said that the prescription enacted in Article L. 244-3 of the Social Security Code with regard to contributions and late payments referred to in the notices of October 26, 1994 and May 13, 1995, have not been acquired; and consequently validated these formal notices for the total sum of 27,975.15 euros in contributions and 085.48 euros in late payment surcharges

FOR THE REASONS THAT Article L. 244-2 of the social security code makes the prosecution of the debtor by the collection body subject to the sending of a formal notice addressed to the employer or to the self-employed worker; that article L. 244-3 of the same code provides that the warning or the formal notice can only concern contributions due in the three years preceding their sending; that article R 244-1 of the same code specifies that “the sending by the fund or by the regional health and social affairs department of the warning or the formal notice provided for in article L. 244-2 is carried out by registered letter with acknowledgment of receipt; when the employer or the self-employed person who is the subject of the warning or formal notice provided for in article R.133-2 seizes the competent court under the conditions provided for in article R. 133-2, the limitation period for actions mentioned in articles L. 244-7 and L. 244-11 is interrupted and new deadlines begin to run again from the day on which the judgment becomes final; that the formal notice as provided by these texts of the code of social security is not contentious nature; that constituting an imperative invitation addressed to the debtor to have to regularize its situation it is found to be the necessary preliminary to the delivery of a constraint, the latter only taking on the said nature contentious; that consequently the provisions provided for in Book 1 of the new Code of Civil Procedure Title XVII, namely articles 640 to 694, are not applicable to this formal notice; that, moreover, it expressly results from the wording of Article L. 244-3 of the Social Security Code that it is the date of sending of the formal notice which must be taken into account for the examination of the prescription and not that of the presentation of the registered letter which is moreover in accordance with the case law established for the application of Article 2244 of the Civil Code in matters of acts interrupting prescription; that consequently, whatever were the modes of delivery, the disputed formal notices sent to the address always effective of Mr. X … can not be said of no effect; that the formal notice relating to the provisional contributions relating to the 1st quarter 1992 third quarter 1993 and regularization of the penultimate year (N-2) was sent by URSSAF on May 13, 1995 as it results from the stamp the Bobigny post office; that the respective deadlines for these contributions were in accordance with Article R 243-22 of the Social Security Code within the first fifteen days of the second month of each calendar quarter, it being specified that the balance due in regularization contributions penultimate year (year -2) can only be prescribed at the same time and under the same deadline conditions as the provisional contribution due for the current year at the time of regularization; that thus these deadlines were on May 15, 1992, August 15, 1992 and November 15, 1993; that they were not yet prescribed when the formal notice was sent on May 13, 1995

1) ALORS THAN the formal notice sent by URSSAF to have to settle the contributions and late increases constitutes a recovery decision which fixes the starting point of the action in collection of contributions; that by deciding that this formal notice was not of a contentious nature and that the rules of notification of acts provided for by the new Code of Civil Procedure did not apply, the Court of Appeal violated Articles L. 244- 2 and R. 244-1 of the social security code, together article 670 of the new code of civil procedure

2) WHEREAS any action or prosecution for the recovery of contributions due by a self-employed person is preceded on pain of nullity by a formal notice sent to the person of the debtor by registered letter with request for acknowledgment of receipt whose notification is deemed made to person when the receipt is signed by the addressee; that by stating that, whatever the delivery methods (to Mrs X … or returned to the unclaimed sender) the disputed formal notices sent to the still effective address of Mr X … produced their full effect, the Court of Appeal violated Articles L. 244-2 and R. 244-1 of the Social Security Code together with Article 670 of the new Code of Civil Procedure

3) ALORS THAN the interruption of a prescription can take place only when the interruptive act is brought to the attention of the person in favor of which the limitation period ran; that the warning or the formal notice sent for the recovery of social contributions can only concern contributions due in the 3 years preceding the date of receipt by the recipient of the notification; that by deciding that the three-year prescription had been interrupted by the date of dispatch of the formal notice, addressed by URSSAF to Mr. X …, the court of appeal violated articles L. 244-2, L 244-3, R. 244-1 of the social security code and article 670 of the new code of civil procedure.

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