Bankruptcy Law

Tax and social security creditors of a debtor in receivership are not exempt from having to declare their claims as liabilities of the procedure . Indeed, in accordance with Article L. 622-24(4) of the Commercial Code , claims from the Trésor Public, social security and provident funds, as well as those collected by the bodies referred to in Articles L. 5427-1 to L. 5427-6 of the Labor Code, such  …

Declarations by public creditors

Tax and social security creditors of a debtor in receivership are not exempt from having to declare their claims as liabilities of the procedure . Indeed, in accordance with Article L. 622-24(4) of the Commercial Code , claims from the Trésor Public, social security and provident funds, as well as those collected by the bodies referred to in Articles L. 5427-1 to L. 5427-6 of the Labor Code, such as Pôle emploi, the provident health fund or the social security fund, which have not been the subject of an enforcement order at the time of their declaration, are provisionally admitted for their declared amount .

These creditors, who are entitled to issue an enforcement order to themselves, must settle their claim, issue the writ and then make a final declaration, within the timeframe set out in Article L. 624-1. The text specifies that if the determination of the tax base and calculation of the tax is in progress, the final establishment of provisionally admitted claims must be made by issuing the enforcement order within twelve months of publication of the opening judgment. A treasurer who has an enforcement order against a taxpayer in an insolvency procedure in respect of an approved tax roll is entitled to declare his claim to the procedure as final and preferential, even if the tax notice was issued only after the declaration was made . However, if a tax audit or rectification procedure has been initiated, the final establishment of the claims must be made before the legal representative submits his end-of-assignment report to the court registry. The deadline for this final determination is suspended by referral to one of the commissions mentioned in Article L. 59 of the tax procedure book  until the date of receipt by the taxpayer or his representative of the commission's opinion, or the date of withdrawal.

On the other hand, the claims of social security and provident organizations, such as pension funds, which are not authorized to issue enforcement orders, are not covered by the procedure and deadlines set out in paragraph 4 of Article L. 622-24 of the Commercial Code for the definitive establishment of claims . This is the case for the construction industry's paid leave fund (caisse de congés payés du bâtiment), which declares its claim in respect of vacation pay and unemployment compensation for bad weather , and SACEM .

Lastly, the departments responsible for tax collection do not commit a fault that could engage the State's liability by declaring a claim provisionally for the amount determined by the departments responsible for tax assessment, but not yet collected, even if the amount has subsequently been reduced .

This is the case, in particular, for the State holding a tax claim for recovery of aid declared incompatible by the Commission (Cass. com., 26 February 2013, LawLex202100003120JBJ (LJ); 28 May 2013, LawLex202100003138JBJ (RJ)) or a claim for river unit royalties (Cons. d'Et., 22 February 2017, LawLex202100003030JBJ (LJ), emphasizing that the failure of a port's accounting officer, who is responsible for collecting the royalties, to declare them within the two-month period following publication of the opening judgment, prevents him from being admitted to the distributions).

Applicable to the receivership procedure by reference from art. L. 631-14 C. com.

See, for an application, Cass. com, 29 September 2021, LawLex20220000000498JBJ (RJ), considering that a URSSAF claim which has not been the subject of a writ of execution, constituted by the service of a constraint on the company liable at the time of its declaration, cannot be definitively admitted; See also Cass. com. 2 February 2022, LawLex202200002258JBJ.

Cass. com., 20 June 2006, LawLex202100003173JBJ (LJ).

Commission des impôts directs et des taxes sur le chiffre d'affaires, Commission nationale des impôts directs et des taxes sur le chiffre d'affaires, Commission nationale des taxes aéronautiques or Commission départementale de conciliation.

Cass. com., 5 July 2005, LawLex202100003037JBJ, LawLex202100003117JBJ (LJ).

Cass. com., 12 April 2005, LawLex202100003118JBJ (LJ).

Cass. com., 3 October 2006, LawLex202100003119JBJ (LJ).

Cons. d'Et., 8 July 2016, LawLex202100003031JBJ (LJ).

Bankruptcy Law

418. Declarations by public creditors

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418. Declarations by public creditors

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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