Qu’elles soient individuelles ou qu’elles aient le statut de société, les entreprises faisant face à des difficultés d’ordre financier, et dont le redressement s’avère impossible, doivent solliciter les tribunaux afin de demander l’ouverture d’une procédure de liquidation judiciaire.
In order to make this procedure more accessible to small businesses, the simplified judicial liquidation is now open to those who do not own real estate, who have not employed more than 5 employees during the last six months and whose figure is business is less than 750,000 euros.
In the case of the opening of bankruptcy proceedings, a question arises for those subject to the RSI: am I personally liable for the contributions that I owe to this organization?
How are simplified judicial liquidation and RSI combined and what are the formalities to be accomplished?
Simplified judicial liquidation and RSI: the principles
The social security scheme for the self-employed (RSI) was officially abolished on January 1, 2018 to be replaced by the Social Security for the Self-employed (SSI) which now depends on the general social security scheme.
However, its operation remains the same and the rules applicable to it are identical.
For the Self-Employed Social Security body, debts, representing contributions that it claims from its taxable persons, are considered as professional debts because they arose from the activity of the entrepreneur.
He also considers that they are due by the insured person in a personal capacity and not by the company for which he is responsible.
The professional qualification of RSI debts has been confirmed on several occasions by decisions of the Court of Appeal: Grenoble Court of Appeal of December 10, 2013 (RG n ° 13/01590), Caen Court of Appeal of February 6 2014 (RG n ° 13/01466) and Rouen Court of Appeal of November 20, 2014 (RG n ° 13/04479, as well as by the Court of Cassation in an opinion n ° 16007 of July 8, 2016.
With regard to the subject of simplified judicial liquidation and RSI, depending on the legal status chosen by the taxable person, to exercise their professional activity, there are different situations:
- The judicial liquidation concerns a company (SARL, EURL, etc.), the RSI is not considered as a creditor of the legal person and this organization cannot therefore declare its debt to collective proceedings, but must pursue its recovery directly from the manager of the society.
This was confirmed by an opinion of the Court of Cassation of November 21, 2018 (n ° 17-18306).
- For an individual entrepreneur (EI, self-employed), the law considers that there is confusion between his personal heritage and his professional heritage.
In this case, the RSI must declare its claim to the judicial liquidation proceedings opened on behalf of the entrepreneur.
- In the event that the judicial liquidation is the subject of an extension procedure to the manager of the company, the RSI must also declare its debt, held in the name of the manager “absorbed” by the extension of the procedure.
- Finally, for the partners of partnerships (SNC, civil societies etc.), the judicial liquidation of the company entails de facto that of all the partners in a personal capacity.
In this case it is the legal person which becomes liable for the RSI contributions of the partners and the organization must therefore proceed to the declaration of its debts to the collective procedure of the company.
Simplified judicial liquidation and RSI: what to do
Simplified judicial liquidation and RSI, in certain cases, the contributions due to the Social Security of the Independents can be brought to disappear at the same time as the company.
However, if the RSI considers these debts to be personal debts, they persist beyond liquidation.
In addition, at the time of cessation of activity, the RSI can also make adjustments, in particular when the liquidation surplus is taken into account in the calculation of the base for social contributions.
To avoid a dispute with this organization, it is prudent to implement good practices:
- First of all, if the RSI asks you for the payment of contributions which must be declared to the legal representative within the framework of the judicial liquidation procedure, you must immediately send him a registered letter with acknowledgment of receipt. by recalling the decisions taken by the Courts of Appeal on the concept of professional debt.
It is the same if you receive reminder letters from this organization.
- Then, in order to limit the amount of the adjustment, it is essential to send a cancellation request to the RSI as soon as possible.
Indeed, in the event of judicial liquidation proceedings, you must pay your social contributions, despite the liquidation, until the end of the last quarter of activity. Cancellation is only effective on the date of the judicial liquidation judgment (article 1844-7 paragraph 7 of the civil code).
Within 30 days of the date of the judgment, you must proceed with your expungement with the Center de Formalités des Entreprises (CFE) which is responsible for returning a certificate of expungement to you as soon as possible.
This deregistration certificate must be sent to the RSI in order to prevent this organization from calculating contributions for a new quarter.
- Finally, the judicial liquidation of the entrepreneur and the radiation from the Social Security of Independents (SSI), is not without consequences on his social protection.
As long as he does not resume an activity under another scheme, the insured remains affiliated to the SSI, by virtue of his residence and benefits from maintenance of his rights for one year. This only concerns benefits in kind (reimbursement of treatment).
After this period, it falls under the basic Universal Health Coverage (CMU).
If he resumes a salaried job, he depends on the general Social Security system.
Finally, he can benefit from the status of beneficiary of the social protection system of his spouse.
The subject of simplified judicial liquidation and RSI has given rise to many questions from entrepreneurs. Case law will be called upon to provide answers to the evolution of current regulations.