Le tax secrecy provided for by thearticle L 103 of the Book of Tax Procedures prohibits tax officials from disclosing information of which they have become aware in the performance of their duties. It must protect taxpayers from disclosures that would infringe their privacy.
However, since July 3 1985 (stop 52011then 1er june 1990, stop 65822), the Council of State judges that it is not opposable to the “joint and several tax debtor” (person called upon to settle the inheritance rights of all his co-heirs or condemned to pay the tax of a company). Parts covered by secrecy may, in fact, be “useful” in the exercise of his “right to complain”.
This exception has just been extended, as follows: in 2014, two men, Pierre and Paul X (first names changed), second-degree relatives of a deceased (their grandmother and great-grandmother), Mme Y, inherit 200,000 euros. This sum is presented as “one third of the net estate assets, valued at 600,000 euros”two-thirds going to Mme Z, daughter of the deceased.
The declaration of succession also mentions “life insurance premiums, up to 1 million euros”, subscribed for the sole benefit of Mr.me Z. The Xs, although compulsory heirs, therefore do not benefit from it – the life insurance making it possible to circumvent the inheritance rules. They can only contest their exclusion if they prove that the premiums paid by the deceased were “obviously exaggerated”with regard to its assets, as provided for by the Insurance Code (L 132-12 and L 132-13) and the case law of the Court of Cassation.
But, how to prove it, since they know neither the extent of this heritage, nor the precise amount paid? The tax authorities will, involuntarily, help them, by sending them a solidarity tax notice on wealth, of 8,000 euros, which the deceased would have been liable for in 2015.
Taxable base at the ISF of 2.1 million euros
They pay their quotas, then request communication of the declarations of Mr.me Z and its tax notices. They explain that they need it, to verify that the debt they have paid does not include the amount of their life insurance: the “tax base” at the ISFof “2.1 million euros”on which it was calculated, is indeed very far from the estate’s net assets.
The administration opposes them with tax secrecy. An administrative tribunal confirms, the December 24, 2020that they are not entitled to these coins, since they are not “joint and several tax debtors”, but “ heirs (they only pay the tax debt up to their share of the estate).
The Council of State, seized by their lawyer, Me Stéphane-Laurent Texier, breaks his judgment, April 8 (2022, 450114): tax secrecy cannot “deprive” the heirs of the information enabling them to “dispute their inheritance tax debt “. “Assuming that is their intention”, added, however, the public rapporteur, Esther de Moustier, not fooled by the maneuver of the Xs.
When the latter have the breakdown of the sums paid by the deceased, they can ask a court to judge that they were “obviously exaggerated” and reintegrate them into the estate.