Unpaid SASU President: France's Cour de cassation Contradicts Bercy

I. What Does the Ministerial Answer Say About the Unpaid President?

A. A Three-Step Reasoning

The answer of 2 June 2026 to the written question of Ms Anne Bergantz rests on a simple sequence¹. Step one: a SASU president who receives no remuneration for his office is affiliated with no scheme. According to the Minister, SASU officers "who are not remunerated for this management activity fall neither within the social protection scheme for employee-equivalent workers, nor within the scheme for self-employed workers" [ne relèvent pas du régime de protection sociale des travailleurs assimilés salariés, ni du régime des travailleurs non-salariés]. Step two: absent affiliation, the share of profit falls outside the scope of the contribution on earned income. Step three: income outside that scope necessarily falls within the levies on investment income.

The conclusion is stated without qualification: "the entire profit of the SASU taxable in their own name under income tax is liable to the social levies on investment income". That conclusion is reproduced almost word for word in the reassessment notices served since summer 2025, and audit services rely on it to reject taxpayers' observations.

Such reasoning holds only if each step is correct. The first step, on which the other two depend, rests on no statutory text. The ministerial answer derives it from a circular issued by the Organic, a pension body, on 30 January 2002, of which no trace can be found in any public database, and which could not in any event prevail over the Social Security Code.

B. A Premise the Social Security Code Does Not Contain

Affiliation of company officers to the general scheme is governed by Article L. 311-3 of the French Social Security Code (CSS). Its paragraph 23 lists, without further qualification, "the presidents and officers of simplified joint-stock companies and of professional practice simplified joint-stock companies"². The wording is identical in the version applicable from 1 January 2023 to 1 March 2025 and in the version in force since 28 February 2025: it therefore covers every year targeted by the current reassessments.

Paragraph 13 of the same article is instructive. It affiliates the officers of worker cooperative companies "where they receive remuneration for their office" [lorsqu'ils perçoivent une rémunération au titre de leurs fonctions]. The legislator therefore knows how to make an officer's affiliation conditional on remuneration when it wishes to: it did so for cooperatives, and never did so for SAS presidents. Adding that condition to paragraph 23 amounts to rewriting the statute by way of a ministerial answer.

One methodological point is required. The current version of Article L. 311-3 will cease to apply on 1 January 2027, as a result of Ordinance No. 2025-1247 of 17 December 2025 recodifying value added tax, Article 34 of which amends that article among other provisions of the Social Security Code³. It is a coordination ordinance with no apparent purpose of altering paragraph 23. The analysis below concerns the years 2023 to 2025, the only years at stake in the reassessments served.

II. What Did the Cour de cassation Hold on 4 June 2026?

A. A Management Agreement and a Procedural Reversal

The judgment of 4 June 2026 (Cass. 2e civ., No. 23-20.189, FS-B) does not concern a SASU under income tax⁴. A simplified joint-stock company paid fees to a third company under a management agreement whereby the latter provided general, commercial and financial management services by making available the company's own president. The URSSAF, the French social contributions collection agency, added those fees back to the contribution base as disguised remuneration of the president's office. The court of appeal upheld the reassessment, and the Cour de cassation dismissed the appeal.

The main contribution of the judgment is procedural. The Court abandons its 2017 case law, which required the social security court to join the officer whose status was disputed. It now holds that this court, "which is seised not of an affiliation dispute but of a challenge to a contribution reassessment decision, is not required to join the persons concerned or the other social protection bodies" (para. 20). Commentators have so far read the judgment from that angle, that of management fees.

B. The Wording of Paragraph 23

To justify why the officer did not need to be joined, the Court notes that the dispute concerned "only the base of the social security contributions owed by the contributing company, with no effect whatsoever on affiliation to a social security scheme, which is mandatory for the presidents and officers of simplified joint-stock companies" (para. 23). It also approves the court of appeal for recalling that sums paid to such officers "are subject to social security contributions and levies under ordinary law" (para. 22).

That wording must be read for what it is, and nothing more. It appears in reasoning about the court's procedural role, not in an answer to the question whether an unpaid president is affiliated. The officer at issue was remunerated, albeit indirectly. The Court is careful to state, at paragraph 17, that the social security court may "verify the conditions of liability to the general scheme of the persons concerned", but that "it does not rule on their affiliation to that scheme". It would therefore be wrong to write that the Cour de cassation has held that the unpaid president of a SASU is affiliated.

What can be written is already significant: the highest court of the branch with jurisdiction over affiliation states, in a published judgment, that affiliation of SAS presidents is mandatory, without making it conditional on remuneration. That is exactly what paragraph 23 of Article L. 311-3 says, and exactly the opposite of the ministerial premise.

C. Two Days Apart: A Revealing Coincidence

The timing is striking. The ministerial answer appeared in the Official Journal on 2 June 2026; the judgment was handed down on 4 June. It should not be read as a reply by the Court to the Minister: the hearing took place on 15 April 2026, well before the answer was published, and the Court was not ruling on social levies. But the coincidence is revealing: within forty-eight hours, two public authorities took irreconcilable positions on the same point. One, which has no power to state the law, makes affiliation conditional on remuneration; the other, which has jurisdiction over the matter, treats it as mandatory.

III. What the Judgment Changes for SASUs Under Income Tax, and What It Does Not

A. The First Step of the Ministerial Reasoning Gives Way

Under Article L. 136-1, 1°, of the CSS, the CSG on earned income is owed by individuals "who are both regarded as domiciled in France for income tax purposes and covered, on whatever basis, by a mandatory French health insurance scheme"⁵. That provision has been unchanged since 1 January 2018.

If affiliation of an SAS president is mandatory, as paragraph 23 of Article L. 311-3 provides and as the Cour de cassation states, the personal condition for liability to the contribution on earned income is met. The ministerial reasoning, which made the absence of affiliation the very ground for excluding the president from the scope of that contribution, loses its footing. It can no longer be argued that an unpaid president escapes the contribution on earned income because he belongs to no scheme.

B. What Remains to Be Proved: The Nature of the Income

Affiliation is not the contribution base. The Cour de cassation itself says so at paragraph 17. Once the first step has fallen, the administration may argue that an affiliated president bears the contribution on earned income only on his remuneration, and that his share of profit is not remuneration. The debate therefore shifts to the nature of that income, and that is where the litigation will be decided.

On that ground, three elements converge. The first is the statute: paragraph f of Article L. 136-6, I, of the CSS subjects professional profits to the levies on investment income "with the exception of those which are liable" to the contribution on earned income [à l'exception de ceux qui sont assujettis]⁶. The test is scope, not actual payment. The second is administrative case law. The Conseil d'État, France's highest administrative court, holds that professional income falls within the levies on investment income "where it does not fall within the scope" of the contribution on earned income, "these two charges being unable to apply cumulatively"⁷. The Douai Administrative Court of Appeal held on 23 March 2026 that income falling within the scope of the contributions on earned income "cannot be subjected to those assessed on investment income", and conversely that the payment of contributions to the URSSAF does not remove from the investment income regime what belongs to it⁸. The reasoning turns on scope, in both directions. The third is the administration's own guidance: since 2014, the official tax bulletin (BOFiP) has treated as earned income the share of a partner carrying on a professional activity within a company that has elected for income tax, and assimilates it to investment income only where the activity is carried on non-professionally⁹.

The judgment of 4 June 2026 adds nothing on that second ground. It opens access to it, by removing the argument that allowed the administration to avoid it.

C. A Civil Judgment Before an Administrative Court

Reassessments of SASU presidents under income tax fall within the jurisdiction of the tax court, that is, the administrative courts. A judgment of the Cour de cassation does not bind them. But affiliation to a social security scheme is a matter for the ordinary courts, of which the Cour de cassation is the highest. In our view, an administrative court will find it difficult to base an assessment on a premise concerning affiliation that the court with jurisdiction over that matter contradicts, all the more so where that premise rests on nothing more than a ministerial answer and an untraceable circular.

D. A Warning: The URSSAF Front

The judgment cuts both ways, and it would be unwise to ignore it. It strengthens the URSSAF's hand in auditing sums paid to SAS officers: mandatory affiliation, add-back of fees that in reality remunerate the office, and no requirement for the court to "ascertain whether that person actually had the use of the invoiced sums in return for the performance of his duties" (para. 23). A SASU president under income tax who relied on his affiliation to argue that his share of profit remunerates his office would place himself on the ground of social security contributions.

The line of defence must therefore remain clear. Mandatory affiliation establishes the personal condition for the contribution on earned income; it does not turn the share of profit into remuneration of the corporate office. That share accrues to the president in his capacity as an operating partner, not in return for his duties as an officer. The argument drawn from the judgment can be usefully deployed on that distinction, and on it alone.