Law firm specialising in employment law
and social security law.
Law firm specialising in employment law
and social security law.
Have you received a notice of inspection from URSSAF and would like to know what the risks are after the inspection?
There are around 150 grounds for reassessment by URSSAF!
A large number of points checked by URSSAF may give rise to an adjustment.
These points include, for example:
These points include, for example:
More specifically, let's take a look at four specific grounds for adjustment.
The principle
The mobility payment is an employer's contribution, provided for in articles L. 2333-64 et seq. and L.2531-2 et seq. (for companies in the Ile-de-France region) of the French General Code for Local Authorities.
This contribution is payable by all companies (with the exception of a few special cases), provided that they have at least 11 employees, including all establishments, in the Ile-de-France region or in a zone where the mobility payment has been introduced.
The number of employees is calculated in accordance with the ordinary law laid down in the Social Security Code and the procedures for freezing threshold effects.
The employee is counted in the workforce of the zone where the establishment holding the single personnel register (RUP) in which he is registered is located, regardless of his actual place of work.
This principle :
Among the exceptions, BOSS specifies that :
Other examples are proposed by BOSS, in particular when it has not yet been possible to calculate the number of employees in the establishment, or when there are circumstances specific to an employee's situation (e.g. long-term absences, etc.).
For teleworkers, for example, whose place of telework is located in a mobility payment zone other than the one in which the establishment holding the RUP in which they are registered is located, or outside a mobility payment zone, the period of three consecutive months for taking into account the place of work runs from the first day of teleworking. In this context, going to one of the employer's establishments, even for one day, interrupts the three-month period.
In practice
The rules for taking account of itinerant employees have changed in terms of the mobility payment.
Before the decree of 29 June 2020 came into force, it was simpler to exempt employees from this payment by justifying the fact that they did not work in the payment zone.
This is no longer possible!
The introduction of these new rules has enabled URSSAF to limit the number of cases in which the mobility payment can be waived (despite the fact that the new rules were presented with a view to ‘simplifying’ the system for calculating headcount).
In particular, it has become virtually impossible to exempt itinerant employees. In the event of an URSSAF inspection, the inspectors will check that the 3 consecutive month period has been respected. If, during this period, the employee returns to the head office or the establishment to which he is assigned (subject to the mobility payment), even if only for a meeting or training, the 3 months are ‘reset’.
This makes it virtually impossible to exempt a travelling employee from the mobility payment.
And the rates are not neutral! Adjustments can involve substantial amounts when the area concerned is the Ile-de-France, for example, for which a rate of 3.20% is applied!
Employers' contributions to supplementary pensions, mutual insurance and complementary provident schemes are excluded from the basis of assessment for contributions under certain conditions, relating in particular to the types of schemes and benefits set up within the company, and the characteristics of these schemes (responsible, solidarity-based, compulsory and collective contracts).
In the event of an URSSAF inspection, each file should in principle include:
To be accepted, exemptions from membership must be based on the employee's free choice, which means that each exemption must be the result of an explicit request from the employee, reflecting free and informed consent.
In the event of non-affiliation with the mutual insurance company, strict conditions must be put in place:
When the conditions are met, the employer does not pay contributions on the employer's share of the mutual and provident fund, but only the CSG and the fixed social charge.
On the other hand, if certain employees are not affiliated to the mutual insurance company, without complying with the conditions for exemption from membership, then an adjustment may be notified.
In this case, URSSAF proceeds as follows:
For the URSSAF inspector, the work will be relatively straightforward: all he will have to do is compare the list of employees with the list of employees affiliated to the mutual. Proof must therefore be provided for those who are not affiliated to the mutual insurer.
Please note: the Cour de cassation has reiterated that the URSSAF inspector may only apply the reduced URSSAF adjustment if the employer can convincingly reconstitute the difference in contributions due. Cass. civ. 2nd ch. 1 February 2024, no. 22-12207
Also worth noting: in a recent ruling, the Court of Cassation also specified that an employee's exemption from enrolment in a company's supplementary health insurance scheme who was also enrolled in his or her spouse's health insurance scheme was not subject to the compulsory nature of the latter. This makes the rules a little easier for employers and employees. Cass. soc. 7 June 2023, n 21-23.743
The question that remains unanswered on this point is that of the more or less strict assessment of the condition regarding the number of supporting documents and the content of the declaration on honour.
To limit the risks, the best advice is to enrol all your employees or to follow the conditions for exemption from enrolment!
Benefits in kind consist of the provision of goods or services by an employer to its employees. They may be provided free of charge or in return for a contribution from the employee that is less than their actual value. They enable employees to save costs that they would normally have had to bear.
Benefits in kind can be of different types:
Let's take a look at two of them!
The vehicle benefit and electric vehicles
The private use of a vehicle made available to an employee on a permanent basis constitutes a benefit in kind, whether the vehicle is owned or leased by the employer, or whether the employer acquires ownership of the vehicle under a lease with a purchase option.
This benefit is estimated on a flat-rate basis or may be calculated, at the employer's option, on the basis of expenses actually incurred. The option is left to the employer.
Please note! It is always difficult to prove that fuel has not been used for the employee's personal consumption, for example during the weekend when a full tank has been filled at the weekend.
URSSAF is very strict about these rules, and cases of reassessment on this point are relatively frequent!
In practice, URSSAF generally requires companies to keep a logbook, a practice that is rarely carried out, and even less so over the long term. If this is not done, the URSSAF inspector will more often than not cross-check the data in the fuel purchase files with the number of days employees are absent or on holiday.
To avoid this, it is possible to set up a system whereby the employee pays for part of the cost of fuel, directly deducted from his net salary. This sum is known as the ‘fuel charge’. Few companies use this mechanism, which is less attractive for the employee, but it is still the best way of reducing the risk of fuel expenses being reassessed.
The cost of fuel used for private purposes and paid for by the employer may also be declared by the employer and subject to contributions.
In principle, their real value is taken into account when assessing the benefit in kind. In the case of a flat-rate valuation, personal fuel is paid for by the employer and subject to contributions according to a scale defined in relation to the purchase or rental rate and any maintenance costs.
All these rules are defined in paragraph 560 - ‘Benefits in kind’ tab of the BOSS.
For electric vehicles, the scales are even different.
The rules are defined in paragraph 800 of BOSS (‘Benefits in kind’ tab).
The legislator has in fact decided to adapt to the obligations that companies may have to ‘green’ their vehicle fleets, which means that charging points must be installed in employees' homes. The question of whether or not the employer pays a benefit in kind arises in the long term, particularly when the employee's employment contract is terminated.
For 2024, there are three major points to be borne in mind in this respect:
The question of how to ensure that the terminal is returned and how to justify this in the event of an URSSAF audit has not yet been resolved, as the legal process is too new.
The point that may need to be anticipated upstream is whether there is a contractual obligation to return the charging point to the leasing company when the vehicle is leased, or whether the employee should be obliged to return it to the owner, in which case it may be appropriate to indicate this in the company's internal policy.
Discount on company products
This is a benefit in kind provided for in paragraph 1000 of the BOSS - ‘benefits in kind’ tab.
The principle here is that benefits in kind granted to employees resulting from the supply of products and services provided by the company on preferential terms do not give rise to liability to social security contributions provided that the price reductions do not exceed 30% of the public selling price.
Please note that this tolerance only applies to the company's products, not those of the group.
This tolerance is calculated on the basis of the price that the employee would have paid had he not been an employee of the company, and applies to both goods and services.
When the employer offers employees ‘bargain’ prices on defective products, the case law accepts that the size of the discount is not assessed in relation to the original public prices, but to the prices at which they would have been resold to discounters. Cass. civ. 2nd ch. 16 December 2011, n 10-26878
When the supply is free of charge or when the discount exceeds 30% of the normal selling price, the entire benefit in kind must be included in the basis of assessment for social security contributions.
Since 2021, a more flexible approach has been in force, under which the discount can be up to 50% if the company can prove that the product cannot be sold commercially, that it is not the product that would be found in the shops (end of series, for example). This does not apply to food products.
In this area, care should be taken to avoid lump-sum taxation, which is provided for when the employer cannot provide the inspector with evidence to justify the reductions that have benefited employees. To avoid lump-sum taxation, the employer should discuss the matter with the inspector during the inspection, and provide him with the expected information, such as an Excel spreadsheet to define the purchases, the prices observed in the trade, and the price that benefited the employee.
Since 1 September 2023, the employer's contribution due on sums paid as specific severance pay has been assessed at 30% of the severance pay, regardless of the employee's age.
However, the old legislation remains in force for contractual terminations that have taken place up to 31 August 2023, concerning employees aged over 55 before that date, so Urssaf can still request certain documents for these employees, for a few more years!
Since the DSS circular of 10 July 2009, inspectors have been systematically adjusting severance pay for employees over 55 if a Carsat certificate entitled ‘Votre situation vis-à-vis la retraite anticipée pour carrière longue’ (Your situation with regard to early retirement for a long career) was not produced at the time of the inspection.
Until 31 August 2023, if the employee was entitled to a basic retirement pension, whether full or partial, the contractual termination payment was subject to social security contributions and CSG/CRDS from the first euro. The purpose of this rule was to prevent retirement from being disguised as a contractual termination in order to exempt sums that should not have been exempted under the less favourable regulations governing retirement.
In 2023, a relaxation had already seen the light of day in the BOSS (paragraphs 900 to 930), which provided that proof could also be provided via a career record or the document entitled ‘Obtenir mon âge de départ’ (Obtain my retirement age) which can be downloaded from the Assurance retraite website.
Since then, this problem has been resolved following the change in the social treatment of contractual termination on 1 September 2023. From now on, the 30% contribution will be levied on compensation paid on the occasion of retirement at the initiative of the employer (instead of 50%) and on the contractual termination of employment (instead of the 20% flat-rate social security contribution), so that, as the systems have been harmonised, there is no need to carry out the previous checks (although the tax system has not changed).