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.
Decree no. 2019-1333 of 11 December 2019, which entered into force on 1 January 2020, has profoundly reformed civil procedure.
One of the crucial measures taken by the reform is the consecration of the principle of provisional enforcement by right by Article 514 of the Code of Civil Procedure. In principle, all decisions in civil matters will be provisionally enforceable.
Normally, when a dissatisfied litigant appeals against a decision, the appeal has a suspensive effect on the enforcement of the judgment. However, the principle of provisional execution by right allows the winner of the case to have the judgment executed even in the event of an appeal.
However, the law establishes cases in which the principle of provisional execution by right will not apply.
Here are some of them:
- decisions relating to nationality (C. pr. civ., art. 1045) ;
- decisions concerning the rectification or annulment of civil status records (C. pr. civ., art. 1054-1);
- decisions relating to the choice of forename(s) at the time of the declaration of birth (C. pr. civ., art. 1055-3, referring to art. 57, para. 3);
- decisions relating to requests for changes of surnames and forenames (Civil Procedure Code, Article 1055-3, referring to Article 60(3));
- decisions relating to filiation (C. pr. civ., art. 1149) and adoption (C. pr. civ., art. 1178-1);
- decisions relating to the exercise of parental authority, maintenance, contributions to the costs of the marriage and the maintenance of children (C. pr. civ., art. 1074-1);
The judge may also decide ex officio or at the request of the parties not to apply this principle in specific cases.
Article 514-1 of the Code of Civil Procedure provides that the judge may decide to do so when the court decision is incompatible with the nature of the case and/or when it is likely to have manifestly excessive consequences.
When a dispute requires that a provisional solution be taken urgently by the judge, a specific procedure known as summary proceedings will be put in place. The "urgent" nature of such a procedure makes it difficult to stop provisional enforcement (C. pr. civ., Art. 514-1 al. 3).
The solution is to appeal and then ask the judge to stop the provisional enforcement of the judgment.
Indeed, it is possible to request a stay of provisional enforcement before the First President of the Court of Appeal. In order for the judge to grant the request, he will have to establish that the criterion of "manifestly excessive consequences" mentioned above is indeed met.
The reform has added another criterion to the suspension of provisional enforcement by operation of law. According to article 514-3 of the said Code, there must be a "serious plea for annulment or reversal".
The assessment of the serious ground will be left to the sovereign appreciation of the First President of the Court of Appeal.
It has been ruled, for example, that provisional enforcement should be suspended when the judgment was vitiated by a procedural irregularity. The judge has also stopped provisional enforcement when there was a "manifest error of law" or a "gross irregularity".
The introduction of this principle of provisional enforcement by right makes it difficult to stop provisional enforcement by right, especially in summary proceedings, but it is still impossible.
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.
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.