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La société d’avocats Damy

La Société d'avocats Damy à Nice assure une prestation de haut niveau, de la consultation d’un avocat à la représentation en justice. Les avocats du cabinet sont compétents en droit des affaires, des sociétés, droit immobilier, droit bancaire, droit social, droit des victimes et cas de dommages corporels. Membre de l’Association des avocats praticiens en droit social, Maître Grégory Damy dispose de certificats de spécialisation.  

OPENLUX: A SCANDAL WITH NO MAJOR REPERCUSSIONS FOR OFFSHORE COMPANIES ADVOCATING TAX OPTIMISATION

There is a fine line between tax evasion and tax fraud. This is something that the Luxembourg "ghost" company has understood well. 

The daily Le Monde, following the OpenLux study, revealed that 38.5% of Luxembourg companies are financial holding companies. These companies may hold foreign companies. 

These financial holding companies are mainly offshore companies with no real activity or employees. However, these simple "letterboxes" represent a gateway to the distribution of money from abroad. 

Avoid taxes on dividends, avoid capital gains tax, lower income tax; there are many advantages to interpose a Luxembourg company between the French company and the tax authorities.

Today, this situation corresponds to the daily life of 15,000 French owners, an estimated value on only 50% of the companies declared in Luxembourg. These companies alone represent 4% of French GDP. 

Nevertheless, this practice vacillates between legality and illegality, between tax optimisation strategy and abuse of tax law. 

Article L64 of the Book of Fiscal Procedures (1) defines abuse of law as the act of diverting the intention of the original law in order to take advantage of it. We then speak of abuse of tax law for fraud against the law. Traditionally, in order for abuse of rights to be qualified, the objective of the arrangement must be exclusively fiscal in order to "evade or reduce the tax burden". 

The European Union (5) has intervened to combat tax evasion practices that have a direct impact on the functioning of the internal market. 

In fact, Openlux has made it possible to establish that more than 6,000 billion euros of financial assets were stored in Luxembourg in 2019 without any inking in the real economy. 

Since 2020, article L64 A of the Book of Fiscal Procedures (2) provides for a broadened notion of abuse of rights. From now on, the "main", and no longer exclusive, reason for abuse of right must be "to avoid or reduce the tax burden". 

Recently introduced, this anti-abuse provision hinders the current craze of companies for tax evasion.

Internet users can also consult the latest news on the impact of this law on the transmission of assets: http://gregorydamy.niceavocats.fr/nos-publications/actualites/actualite-en-droit-fiscal/la-nouvelle-definition-de-l-abus-de-droit-son-impact-sur-la-transmission-du-patrimoine

What are the consequences of abuse of rights for fraud against the law? 

Articles 1729 (3) and 1741 (4) of the General Tax Code answer this question by adding tax and criminal sanctions. These include : 

an increase in taxes due of 40 to 80% depending on whether or not the taxpayer has had the main initiative.
a fine of €37,500 and imprisonment for a maximum of five years if he voluntarily took part in the fraud. 
Unfortunately, transparency with the Tax Authorities cannot reduce these sanctions since neither employees, offices nor economic objectives can be justified within the company. 

The current scandal unfortunately threatens all Luxembourg companies with a French owner. The tax authorities will redouble their efforts to make their economic interests bear fruit. Police custody, emotional pressure, threats of sanctions may concern you. 

Your lawyer, who is qualified in this area, will be able to defend you by arguing the legality of tax optimisation. Because yes, convictions for fraud are slim as long as you are properly supported in your proceedings. 

Are you worried about your situation? Don't wait any longer. Contact our office. Maître DAMY Gregory, specialising in business law and company law, will be at your disposal to serve your best interests. 

 

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Beware of Coronavirus scams!

In recent months, the DGCCRF has seen a resurgence of scams linked to the coronavirus, with many victims of malicious companies and individuals.

We are going to draw up a non-exhaustive list of the scams that have been identified to date. If you are a victim of such a scam, do not hesitate to contact us as soon as possible.

    To date, only the vaccine appears to be a correct alternative to fight this virus. In France the vaccination is entirely free but access to the vaccine is not immediate. However, if a website, someone knocks on your door or contacts you in any way, be careful if you are offered a quick vaccination in return for payment, it's a scam!
    In the same way, any so-called medical device, potions, herbal teas, food or non-food products, magic oils, or revolutionary treatments do not allow you to protect yourself against the virus or to heal faster,
    Screening is carried out in specialised centres. Contact your doctor or pharmacist. Don't be taken advantage of by malicious people who offer rapid tests for a fee.
    The travel certificates required during confinement or curfew are completely free of charge. You can download them from the government website or copy them by hand. They are valid. Never pay for them!
    No one can force you to decontaminate your home or office. Neither your landlord nor a third person pretending to be the building's trustee, for example. Don't be fooled.
    Beware of pishing or smishing (phishing) techniques in which someone contacts you most often by e-mail by usurping the mailbox of one of your contacts or of an administration. You are asked to click on a link or to call back a premium-rate number. If you "take the bait" you are asked for personal information such as your bank details. The scenarios are well thought out and you can legitimately believe that you are obliged to answer.

If you have the slightest doubt, don't hesitate to call our law firm before you are subjected to one of these numerous scams.

 

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CORONAVIRUS AND ECONOMIC DIFFICULTIES OF COMPANIES: THE SOLUTIONS

The Covid-19 epidemic currently affecting France is an unprecedented health crisis, which will undoubtedly lead to economic difficulties for companies. 
 
In spite of the announcements made by the President of the Republic, there is a good chance that the creditors of companies, who may themselves be in difficulty, will not freeze the various sums owed to them (rent, invoices, etc.). 
 
However, solutions exist to survive during this difficult economic period and Damy Law Firm is at your disposal to assist you: 
 
- Negotiations with your main creditors
 
- Opening of a possible collective procedure to anticipate future difficulties
 
Although our offices are closed due to government announcements, we are nevertheless at your disposal by email or telephone to find solutions together if you encounter economic difficulties. 
 
Take care of yourself. 
 
 
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Simplified collective procedures due to VIDOC 19

The health crisis we are currently experiencing has forced the government to take urgent measures to alleviate the difficulties encountered by companies, the most important of which is the possibility of benefiting from collective proceedings under lighter conditions.
 
In times of crisis, the opening of collective proceedings may be necessary to deal with the impossibility for certain companies to honour the payment of various business charges, such as suppliers' bills of exchange or the rent of commercial premises.
 
The government has in fact taken specific measures with regard to commercial rents. The orders of 25 March 2020 are relatively clear: if no suspension of rents is provided for, the consequences of non-payment of rents are limited.
 
In concrete terms, this provision guarantees the tenants of a commercial premises that no legal action can be taken by the landlord in the event of non-payment of rent during this crisis period, and this until the expiry of a period of 2 months after the end of the containment measures. This will reassure the tenants most in difficulty as a result of the closure required by the government.
 
In the state of the legal arsenal urgently taken to respond to the health crisis, between facilitated collective procedures and suspension of proceedings for non-payment of rent, there are therefore concrete solutions to overcome the difficulties related to the payment of business charges.
 
We are at your entire disposal to negotiate directly with your landlord to set up a system of spreading the rents concerned over several months. The risk of being more easily placed in collective proceedings is a major argument that should alert creditors.
 
In a concern of solidarity in these difficult times for all, the first telephone consultation will be offered to you and we will usefully advise you on the measures to be implemented to deal with your difficulties.
 
Take care of yourself.
 

Traffic accident: the assessment of the involvement of a vehicle.

Mentioned in Article 1 of Law 85-677 of 5 July 1985, "involvement" appears to be one of the essential components of the compensation scheme for victims of traffic accidents.

However, while the involvement of a land motor vehicle which has come into contact with the seat of the damage poses (a priori) few difficulties, the assessment of its involvement in the absence of contact generates major uncertainties.

Indeed, it is now settled case-law that the land motor vehicle in contact with the seat of the damage is necessarily involved, whether the latter is stationary, even when parked, or moving. (Cass. 2nd civ., 25 Jan. 1995- Court of Cassation, 2nd civil chamber, 30 April 2014 - n° 13-16.291)

However, the absence of contact does not preclude recognition of the involvement of a vehicle (Cass. crim., 30 Oct. 1989.).

The vehicle's "any role" or "involvement in any way" in the accident was then considered.

Thus, even if the mere presence of a vehicle at the scene of the accident is not sufficient to establish its involvement (Civ. 2e, 25 May 1994, No. 92-19.200 - Civ. 2e, 13 Dec. 2012, No. 11-19.696.), the latter is recognised as soon as the vehicle played a disruptive role.

For example, it was possible to retain the involvement of an overtaken vehicle, travelling at a very reduced speed and encroaching on the roadway, despite the absence of contact with the seat of the damage. (Civ. 2e, 18 Apr. 2019, No. 18-14.948.).

More than contact, it is the causal role, broadly understood, that seems to determine the involvement of a vehicle in a traffic accident.

In this sense, the 2nd civil chamber of the Court of Cassation issued on January 16, 2020, a ruling that further dispels the shadows regarding the involvement of a vehicle in the absence of contact.

In this case, the mother and sister of a victim of a traffic accident, summoned the owner and driver of a tractor on the grounds of his involvement within the meaning of Article 1 of Law No. 85-677 of 5 July 1985, the latter having played a role in the accident.

The victim had skidded on the slippery roadway due to the presence of oil, unintentionally spilled by the tractor due to a leak.

The owner of the tractor and its driver complained to the decision of the civil division of the Court of Appeal of Saint-Denis of 20 April 2018 that they were jointly and severally liable to compensate the victim for the tractor's involvement in the accident.

It is therefore by a judgment dated 16 January 2020 that the Court of Cassation (Cass. 2e., 16 Jan. 2020, n° 18-23.787, P+B+I) confirmed the Court of Appeal without its assessment of the involvement of the tractor, by dismissing the appeal.

"(...) But having exactly recalled, on the grounds adopted, that is involved, within the meaning of Article 1 of Law No 85-677 of 5 July 1985, any vehicle having played any role in the occurrence of an accident and then found that Z's vehicle had skidded on the roadway made slippery by the presence of oil "involuntarily spilled" by the tractor driven by Mr X, the Court of Appeal (...) rightly deduced that the tractor was involved in the accident.

It should be noted here that the Court makes a literal appreciation of the notion of "any role" already identified in previous case law.

Thus "involvement", a term intended to be broad by the legislator, is assessed in favour of the victim, and seems to be retained as soon as a vehicle plays a "role", of whatever nature, in the occurrence of the accident.

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  1. De nouvelles possibilités pour obtenir le paiement des pensions alimentaires !