SASU Income Tax: Is Bercy Exposing Its Officials to Concussion?

I. What a DGFiP Official Can No Longer Ignore

A. His Own Administration's Guidance

The Official Tax Bulletin (BOFiP) is not commentary external to the administration: it is the administration speaking. BOI-IS-CHAMP-20-20-20-20, published on 25 March 2014 and never withdrawn, comments on the election under Article 239 bis AB of the French Tax Code (CGI), the very election that places the SASU under the partnership regime. Its paragraph 160 states that the individual partner's share of results is taxed in the category of "professional or non-professional" profits "depending on whether or not the partner carries on a professional activity within the company that has made the election". Its paragraph 260, devoted to social levies, distinguishes two situations: where the share derives from an activity "carried on professionally", the income is subject to the generalised social contribution at the rate then applicable to earned income and to the CRDS; where it derives from an activity "carried on non-professionally", the income is "assimilated to investment income"¹.

BOI-RSA-GER-10-30, in its version of 16 July 2025, adopts the same analysis, describing the partners of such companies as persons "carrying on an activity within such a company", whose remuneration is added back to the profit taxed "in the income category corresponding to the company's activity"². Both instructions are published, in force and not withdrawn. The second paragraph of Article L. 80 A of the French Tax Procedures Code (LPF) prohibits the administration from making an adjustment by relying on an interpretation different from the one it has made known through its published, unwithdrawn instructions³. The age of an instruction is not a ground of non-binding effect; only its formal withdrawal would be, and it has never occurred.

An official who serves a reassessment notice subjecting to the investment income levies the share of a partner whom he himself finds to be personally carrying on the activity therefore takes a position contrary to the one his administration has published. He cannot be unaware of it: the guidance sits in the documentary database he uses every day.

B. His Own Court

The Conseil d'État laid down the assessment rule in a decision of 30 December 2021, reported in the tables of the Recueil Lebon: "income derived from a self-employed activity is subject to the social contribution on earned income where that activity is carried on professionally, whether on an ancillary basis or not". The taxpayer was neither affiliated with nor contributing to any self-employed scheme. The court of appeal that had upheld the investment income assessment was censured for having "misapplied the scope of the tax statute", and discharge was granted⁴. We explained in a previous article why that characterisation makes the ground a matter of public policy, which the court must raise of its own motion.

The administrative courts of appeal apply that rule and grant discharge. The Paris court did so on 20 October 2025 for a taxpayer carrying on an undisclosed activity, never declared, never contributed upon: his income was that of a self-employed worker, and "the administration could not subject the taxpayer to additional social contributions assessed on investment income". The Versailles court held on 27 May 2025 that the portion of income falling within the scope of the earned income levies "cannot be subjected to those assessed on investment income"⁵.

The most telling episode is that of the Paris court on 17 October 2025. The court informed the parties, under Article R. 611-7 of the Code of Administrative Justice, that it might raise of its own motion the ground that non-commercial income constituted professional income within the meaning of Article L. 136-3 of the French Social Security Code (CSS). The Minister did not defend the assessment: by a brief of 4 September 2025, he stated that he had granted relief from the levies at issue, and the court recorded that there was no longer any need to adjudicate⁶. The central administration has therefore known, since at least that date, what the position it defends in reassessment notices is worth, since it abandoned it before the court as soon as the court took it up.

C. His Own Legal Basis

What, then, does the position of the audit services rest on? On a ministerial answer of 2 June 2026, which infers from the president's lack of remuneration the absence of any affiliation, and from the absence of affiliation the attachment of the entire profit to investment income⁷. Yet the Conseil d'État held on 16 July 2026, in a decision reported in the tables, that a ministerial answer containing an interpretation of the tax statute "unfavourable to the taxpayers" cannot be relied upon by them against the administration and is not even an act open to challenge⁸. In other words, the answer of 2 June 2026 is not a norm: it is the administration's opinion about its own practice.

That opinion itself relies, for the remuneration criterion, on "a circular No. 2002-004 of 30 January 2002" of a pension body that disappeared in 2006. That text is accessible neither on Légifrance, nor on the URSSAF websites, nor in public databases. Article L. 312-2 of the French Code of Relations between the Public and the Administration deems unpublished instructions and circulars repealed⁹. We developed this point in a separate article. It suffices here to note that an official who maintains an adjustment has, on one side, binding published guidance, a reported Conseil d'État decision, three appellate judgments and relief granted by his own Minister, and on the other, a non-binding ministerial answer resting on an untraceable circular.

II. Concussion: An Offence Closer Than One Thinks

A. The Text

Article 432-10 of the French Criminal Code punishes "the act, by a person vested with public authority or entrusted with a public service mission, of receiving, demanding or ordering the collection, as duties or contributions, public taxes or charges, of a sum which he knows is not due, or exceeds what is due". The penalty is five years' imprisonment and a fine of EUR 500,000, which may be increased to twice the proceeds of the offence. Attempt is punished by the same penalties¹⁰.

Three features of this text deserve attention, because they contradict the widespread idea that concussion is a form of personal enrichment. The offence requires no profit for its perpetrator: the undue sum is collected for the benefit of the public body, and it is the collection itself that is punished. It does not target only the person who "receives": it targets the one who "demands" and the one who "orders the collection", that is, the official who establishes the assessment and triggers its recovery, not merely the accountant who cashes it. And attempt is criminalised: a reassessment notice that fails because the taxpayer obtains discharge does not escape the text merely because it produced no effect.

What remains, and it is everything, is the mental element: "a sum which he knows is not due". The offence is intentional. It does not punish error, nor a debatable interpretation, nor a losing legal position. It punishes knowledge.

B. The Mental Element According to the Criminal Chamber

The Criminal Chamber clarified how that knowledge is assessed in a published judgment of 7 December 2022 concerning a local elected official receiving allowances above the statutory ceiling. The defendant argued that the offence "cannot therefore be characterised by a mere erroneous interpretation by the agent of the rules of law" and that he had "believed he could receive it entirely lawfully". The Court approved the court of appeal for rejecting that defence: the defendant "had sufficient experience" to have acted knowingly, he "should at a minimum have asked himself the question, as a person vested with public authority", and he could not "validly exonerate himself by the absence of prior alerts from the administrative services". The Court added that "the mental element of the offence of concussion, which falls within the sovereign assessment of the trial judges, is inferred from the material facts"¹¹.

Let us set these criteria against the situation described in Part I. Experience: the officials who serve these adjustments are auditors and inspectors, professionals in the field. The duty to ask oneself the question: the contrary guidance is published in the database those officials consult, the Conseil d'État decision is reported in the tables, the Minister's relief appears in a published judgment. Alerts: taxpayers' observations, when carefully drafted, cite these texts and decisions; rejecting them on the ground that the 2014 guidance is old, or that the 2026 ministerial answer provides otherwise, is responding to an alert, not ignoring it. Material facts: the reassessment notice, the response to observations and the recovery order are written, dated and signed acts.

We do not conclude from this comparison that the offence is made out. We note that the elements from which the Criminal Chamber infers knowledge are, in this litigation, gathered on public documents, and that each new decision favourable to the taxpayer, each new relief granted to avoid a judgment, makes it harder to maintain that the person who still orders collection does not know.

C. The Hierarchical Shield and Its Limit

The field official does not act alone. He applies a template, an instruction, a ministerial answer. The General Code of the Civil Service indeed makes it his duty: "a public official must comply with the instructions of his superior". But the same article adds an exception: "except where the order given is manifestly unlawful and liable seriously to compromise a public interest"¹². The duty of obedience protects the official who carries out an instruction whose unlawfulness is not manifest; it ceases to protect him when it becomes so.

Is an instruction that commands the subjection to investment income of income which the same administration's published guidance attaches to earned income, which the Conseil d'État has held to fall within the latter, and from which the Minister has himself granted relief before a court, "manifestly" unlawful? The question is not rhetorical and we do not claim to settle it. We observe that the ministerial answer is not the law, that the template is not the law, and that Article L. 121-10 refers the official, in the last analysis, to his own judgment on the lawfulness of what he is asked to do. That is a burden the institution places on him, and one he did not ask for.

III. The Limits of the Characterisation and Where Responsibility Really Lies

A. What the Criminal Chamber Refuses: Criminal Law as a Tax Remedy

It must now be said with equal clarity what criminal law does not permit. A taxpayer who considers his assessment unfounded has one remedy: the claim, then the tax court. He does not have a second one consisting in bringing the inspector before the criminal court. The Criminal Chamber so held unambiguously on 17 December 2014. A taxpayer had directly summoned a tax inspector for concussion, accusing her of having disregarded a foreign tax certificate and maintained an assessment. The court of appeal had acquitted her, holding that "nothing prevents the administration from disregarding a document it does not consider sufficiently probative", that "in such a situation, it is for the taxpayer to challenge the tax administration's position before the administrative court", and that nothing showed that "any animosity, bad faith or intent to harm" had led her "to demand payment of a tax she knew to be undue". The Cour de cassation approved that reasoning¹³.

The same judgment carries a second lesson, which any taxpayer tempted by the criminal route should ponder. The complainant was ordered to pay damages for abusive civil-party action, the court of appeal having held that summoning "without evidence, a tax inspector before a court with the aim of calling into question her honesty and probity" showed "obvious recklessness and bad faith". The Cour de cassation quashed that head only on a point of appellate procedure, without questioning the principle. The person who chooses the wrong court does not merely lose time: he exposes himself.

The lesson is clear. A disagreement on the interpretation of the tax statute, however sharp, is not concussion, and the tax court is its sole arbiter. None of the foregoing should be read as an invitation to file a complaint against an official. We formally advise against it, and our practice in this litigation consists in challenging within the time limits, raising the public policy ground, relying on the guidance under Article L. 80 A and requesting disclosure of the texts invoked, before the administration and then before the administrative court.

B. Shifting the Risk: Where the Templates Are Written

If a criminal risk exists, it is therefore not primarily that of the auditor who applies a model. It is that of the institution which drafts that model and which, informed by its own directorates of the published guidance, the case law and the relief it has itself granted, chooses to maintain it. It is at that level that knowledge is certain, because it is there that the ministerial answer was written, that the brief of 4 September 2025 before the Paris court was signed, and that the BOFiP is administered.

The Code of Criminal Procedure adds a dimension that is often overlooked. Its Article 40 provides that "any constituted authority, any public officer or civil servant who, in the exercise of his functions, acquires knowledge of a crime or offence is bound to report it without delay to the public prosecutor"¹⁴. We do not claim that this provision is triggered today. We note that it weighs on the senior officials of the tax administration as on any civil servant, and that an institution cannot indefinitely ask its agents to order collections which it shows, through its own relief decisions, that it regards as undue, without one day one of those officials asking himself the question that text imposes on him.

C. What Each Should Do

The administration has two coherent paths before it, and it takes neither. If it regards its 2014 guidance as wrong, it can formally withdraw it: the taxpayer would then lose the benefit of Article L. 80 A for the future, and the debate would shift to the statute alone, where the Conseil d'État has already spoken. If it regards its guidance as correct, which the relief of 4 September 2025 suggests, it must stop the adjustments and grant relief of its own motion on pending assessments. Maintaining simultaneously a published guidance and adjustments that contradict it is not a third path: it is the absence of a choice, and it is the field officials who bear its weight.

The officials, for their part, have Article L. 121-10 and the hierarchical channel. Nothing prevents them from reporting upward, in writing, that the observations they receive cite unwithdrawn published guidance and a reported Conseil d'État decision, and from requesting an express position from their directorate. An official who has asked the question in writing and received the order to proceed has moved the knowledge to where it belongs.

Taxpayers, finally, must resist two symmetrical temptations. That of paying and waiting, which deprives them of any remedy once the claim period expires. And that of criminal law, which exposes them without serving them. The path is that of the tax court: observations within thirty days, a claim before 31 December of the second year following the issue of the tax roll with a request for suspension of payment, then the administrative court, where the public policy ground awaits them¹⁵. It is less spectacular than a direct summons. It is the only path that wins.