(MME ROXANE S.)
The Constitutional Council was seized on 15 October 2014 by the Court of Cassation (Chamber of Commerce, Judgment No. 1036 of 15 October 2014), in the Under Article 61 (1) of the Constitution, of a priority question of constitutionality posed by Mrs Roxane S., relating to the conformity with the rights and freedoms guaranteed by the Constitution ofArticle 760 of the General Code of Taxes.
The Constitutional Council,
Given the Constitution;
SeenOrder No. 58-1067 of 7 November 1958 as amended by the Organic Law on the Council Constitutional;
Seen general tax code ;
Given the commerce code ;
Given the Consumer Code ;
Seen Act No. 89-1010 of December 31, 1989 Prevention and Resolution of difficulties related to the over-indebtedness of individuals and families;
In view of the Act 2003-710 of 1 August 2003 of orientation and programming for the city And urban renewal;
Given the Act No. 2005-845 of 26 July 2005 for the protection of enterprises;
In view of the judgment of the Court of Cassation of 19 December 1973 (first Civil Chamber, No. 72-13236);
Given the Rules of Procedure of 4 February 2010 on the procedure before the Constitutional Council for priority questions of constitutionality;
In view of the observations submitted by the firm Frenkel et associés, lawyer to the Paris Bar, for the applicant Registered on November 6 and 17, 2014;
Seen the observations filed by the Prime Minister, registered on November 7, 2014;
Seen the exhibits filed and attached to the file,
Me Alain Frenkel for the applicant and Mr. Xavier Pottier, designated By the Prime Minister, having been heard at the public hearing on 8 January 2015;
The reporter was heard;
1. Considering thatArticle 758 of the General Tax Code provides that, for free transfers of property Furniture, other than listed securities and term claims, the value used as a basis for tax is determined by the detailed and estimated statement of the parties, in principle without diversion of expenses; and pursuant to section 760 Of the same code, in its post-entry writing Vigor of the law of 26 July 2005 for the safeguarding of the abovementioned undertakings:
"For term claims, the right is levied on the capital expressed in the act and which is the object of it.
" However, the free transfer fee is liquidated on the basis of the parties' estimated statement of claim. Debts of which the debtor is in a state of bankruptcy, of proceedings for the safeguarding, reorganization or liquidation of the debtor at the time of the act of donation or of the opening of the estate.
" Any amount recovered on the Debtor of the receivable subsequent to and in addition to the valuation, must be the subject of A declaration. These declarations shall apply to the principles governing transfer declarations by death in general, in particular from the point of view of time limits, penalties and limitation, due to tax liability only being deferred to the day of the Recovery of all or part of the debt transmitted " ;
2. Considering that, pursuant toArticle 885 S of the General Tax Code, these provisions are also applicable The determination of the base of the solidarity tax on capital;
3. Taking the view that, according to the applicant, the difference between the terms of valuation of the term claims and those of the claims payable for the determination of the base for free transfer rights and the tax of solidarity on the Fortune misunderstands the principles of equality before the tax law and public charges; that it also fails to recognise these principles the absence of a difference between interest-bearing and non-interest-bearing claims; The difference established by the second paragraph of Article 760, between the Creditors in the long term, depending on whether or not their debtor is likely to be the subject of a collective procedure, also disregards those principles in view, in particular, of the difficulty in bringing forward the evidence of the " Jam " ; finally, it argues that by establishing a mechanism for the revision of tax bases solely for the benefit of the administration where the amount of the debt recovered differs from the amount on which the tax was calculated, the provisions of the third paragraph of Article 760 of the general tax code disregard the guarantee of the rights proclaimed Article 16 of the Declaration on Human and Citizen's Rights of 1789;
4. Considering that Article 6 of the 1789 Declaration states that: The law ... must be the same for all, either that it protects, or that it punishes " ; that the principle of equality does not preclude the legislator from dealing with different situations in different ways, nor that it derogates from equality for reasons of public interest, provided that, in either case, the difference in The resulting treatment is directly related to the purpose of the legislation that establishes it;
5. Considering that Article 13 of the 1789 Declaration states that: For the maintenance of the public force, and for administrative expenditure, a common contribution is essential: it must also be allocated among all citizens, because of their faculties'. ; that according to Article 34 of the Constitution, it is for the legislator to determine, in accordance with the constitutional principles and taking into account the characteristics of each tax, the rules according to which the In particular, in order to ensure respect for the principle of equality, it must base its assessment on objective and rational criteria according to the aims it proposes; that this assessment should not, however, A marked breakdown of equality before public office;
6. Whereas in the first place, the first paragraph of Article 760 of the General Tax Code lays down the The principle that, in calculating the basis for free transfer duty and the solidarity tax on capital, term claims are valued at their nominal value;
7. Considering, on the one hand, that the actual value of a claim depends on its nominal value and the likelihood of its recovery; that by providing that, for the basis of free transfer duty and the tax of solidarity on capital, Claims which are not payable are assessed in principle on the basis of their nominal value alone, the legislature established between the claims in the term and the claims payable a difference based on an objective and rational criterion in relation to The objective of allowing the value of these claims to be assessed;
8. Considering, on the other hand, that if, as a general rule, the principle of equality before the law requires the same treatment of persons who are in the same situation, it does not result, in so far as it obliges them to treat differently from the Persons in different situations; that the principle of equality before public office does not require more than the assessment of interest-bearing claims to be subject to rules different from those which do not Are not;
9. Considering, second, that the second paragraph of Article 760 of the General Tax Code provides, by Derogation from the principle of the taxation of term claims on their face value, that the tax base is determined on the basis of the estimated declaration of the parties when on the date of the tax generator, the debtor " Is in a state of bankruptcy, a safeguard procedure, a judicial reorganization or liquidation or a bankruptcy, ; that the legislator has, therefore, taken into account the impact, on the value of the receivables, of the difficulties encountered by the debtor in fulfilling its obligations;
10. Considering that the provisions of the second paragraph of Article 760 open the system of taxation on an estimated basis of receivables where the debtor is the subject of one of the collective procedures for the treatment of difficulties Undertakings governed by Book VI of the Commercial Code; that, if the debtor is not the number of persons who may be the subject of one of those collective procedures, the imposition on an estimated basis of the term receivable is not possible If the debtor is in a situation of " Jam " ; that it is clear from the abovementioned judgment of the Court of Cassation that the jam is characterised by ' The condition of the non-trading debtor whose liabilities exceed the assets and who is unable to fully satisfy all of its creditors when they have ceased to credit the debtor " ; that after that decision, the provisions of the Act of 31 December 1989 referred to above, introduced in the Href=" /viewCode.do?cidTexte=LEGITEXT000006069565&dateTexte=29990101 &categorieLink = cid"> consumption code, allowed the debtor in good faith who is unable to cope with all his or her matured debts To initiate a debt overhang procedure; Href=" /viewTexte.do?cidTexte=JORFTEXT000000428979 &categorieLink = cid"> Act of August 1, 2003 above provided that the debtor in an irreparably compromised situation may be the subject of a personal recovery measure with Or without judicial liquidation;
11. Whereas by instituting a difference in treatment between creditors holding term claims according to whether or not their debtors fall within the collective procedures provided for by the commerce code, the legislator relied on the rules organizing the collective procedure applicable to firms in difficulty; that the principle Equality does not require that the tax law put forward claims on debtors liable to be the subject of a The procedure of over-indebtedness in application of the consumption code to rules identical to those applicable where the debtor is the subject of a Collective procedure in application of the trade code ; that the difference in treatment thus instituted takes into account the particular difficulties Met to assess the value of the term claims Between individuals, since the procedures for over-indebtedness, initiated solely by the debtor, have neither the same purpose nor the same effect as the collective procedures; that the provisions of the second paragraph of Article 760 allow the The creditor of a debtor who is not subject to the provisions of Book VI of the Code of Commerce to have his claim imposed on his or her estimated return when he is able to prove by any means that the debtor is unable to do so In the face of all of its debts matured or at the time of the Tax; that these provisions do not misunderstand the principles of equality before the law and public charges;
12. Considering, third, that the third paragraph of Article 760 of the General Tax Code provides that, Where a term receivable has been subject to tax on an estimated basis pursuant to the second paragraph of that same section, the creditor is required to report any additional amounts recovered subsequent to the assessment in addition to the assessment; that The resulting additional tax is thus not Subject to the condition that the claim was undervalued at the date of the tax-generator; that the taxpayer is thus unable to provide evidence that the ability of the debtor to pay an amount in excess of the value to which The claim had been assessed as a result of circumstances subsequent to the fact that the tax was chargeable; that the provisions of the third paragraph accordingly establish rules for determining the tax base which are unrelated to The assessment of the contribution faculties of taxpayers subject to tax; Ignore the principle of equality before public office;
13. Whereas it follows from all the foregoing that, without the need to examine the other grievance, the provisions of the Third paragraph of Article 760 of the General Tax Code must be declared contrary to the Constitution; that the provisions of its first two paragraphs, which do not disregard any other constitutional requirements, must be declared Conformity with the Constitution;
On the effects of the Declaration of unconstitutionality:
14. Considering that under the second paragraph of Article 62 of the Constitution: A provision declared unconstitutional on the basis of Article 61-1 shall be repealed from the publication of the decision of the Constitutional Council or a later date fixed by that decision. The Constitutional Council shall determine the conditions and limits in which the effects of the disposition may be called into question." ; if, in principle, the declaration of unconstitutionality must benefit the author of the priority question of constitutionality and the provision declared contrary to the Constitution cannot be applied in the proceedings in progress on the date Of the publication of the decision of the Constitutional Council, the provisions of Article 62 of the Constitution reserve the power of the latter to fix the date of the repeal and carry forward its effects in time only to provide for the questioning The effect of the disposition before the intervention of that return;
15. Considering that the declaration of unconstitutionality of the third paragraph of Article 760 of the General Tax Code Takes effect from the date of publication of this Decision; that it is applicable to all matters not determined definitively on that date,
The first two paragraphs of Article 760 of the same Code Are in conformity with the Constitution.
The declaration of unconstitutionality of Article 1 takes effect as from the publication of the Decision in accordance with the conditions laid down in Recital 15.
This decision shall be published in the Official Journal of the French Republic and notified under the conditions set out in section 23-11 of the Order of November 7, 1958, above.
Deliberated by the Constitutional Council in its session of 15 January 2015, attended by Jean-Louis DEBRÉ, President, Claire BAZY MALAURIE, Nicole BELLOUBET, MM. Guy CANIVET, Renaud DENOIX de SAINT MARC, Hubert HAENEL, Lionel JOSPIN and Nicole MAESTRACCI.