LThe tax administration must act within specific deadlines when it “takes back” a declaration which contains errors or omissions, to rectify it: six years when it must make cross-checks to understand the situation of the taxpayer; three years only when it immediately has the necessary elements (articles L. 186 And L.180 of Book of tax procedures).
If she misses the deadlines, her action is prescribed, as the following case shows. 1er August 2014, the tax administration received the inheritance declaration from Mr. X, who died in February, as well as the deceased’s will. The latter, a widower without children, appoints his brother as universal legatee. He bequeaths to his caregiver, whom he ” considered as [sa] girl “and that his wife also considered “like your own family”the sum of 310,000 euros, “to which may be added the sale of the content of [son] apartment “.
The declaration of inheritance specifies that Mr.me Y, 60 years old, eight days before dying. Which allows Mme Y to benefit from the exemption from transfer duties upon death, provided for inarticle 796-0 bis of the general tax code.
However, on January 16, 2018, the administration demanded… 347,535 euros, which includes 60% rights for transmission between non-parents (177,133 euros), default interest (28,696 euros) and penalties for ” abuse of rights “ (141,706 euros).
No common life
She claims that the civil partnership was “fictitious”because concluded with the aim of“evade” these rights, and not in that of organizing, as required by civil Code (515-4), a ” common life “notion which supposes, “besides a common residence, a life as a couple”as specified by the Constitutional Council, November 9, 1999 (99-419). In fact, indicates the administration, the homes of the civil partners were distinct. Furthermore, their relationship was of a nature ” subsidiary company “ and no “sentimental”which excluded any life as a couple.
Mme Y opposes the prescription: its right of “resumption” can only be exercised until the end of the third year following that of the declaration, i.e. until December 31, 2017, it acted sixteen days late. The administration replies that, to assess the fictitious nature of the civil partnership, it needed additional investigations, justifying a delay of six years.
Justice proves him wrong, at first instance then on appeal : the declaration of succession and the will already allowed him to establish the fictitious nature of the civil partnership, taking into account the two addresses of the civil partners, their age difference and the nature of their relationships. Additional investigations only ” confirm “ these elements, as argued by Me Géraud Mégret, lawyer for Mme Y to the Court of Cassation. It rejected the administration’s appeal on May 29 (2024, 22-24.008):Mme Y can keep his legacy.