Question 15473 — pensions: general

Summary

Mr. Lionel Tivoli draws the attention of the Minister of Labor and Solidarity to an area of ​​legal uncertainty concerning the calculation of resources in the context of the allocation of the survivor's pension and more particularly on the treatment of cash donations with regard to article R815-25 of the social security code. In application of article R353-1 of the social security code, the resources taken into account for the allocation of the survivor's pension are assessed according to the terms set out in particular by articles R815-22 and R815-25 of the same code. Article R815-25 provides that “current movable and immovable property and those which the applicant has donated to his descendants during the five years preceding the request are deemed to provide him with income assessed at 3% of their market value fixed on the date of the request, contradictorily and, failing that, according to an expert”, rate reduced to 1.5% when the donation took place between five and ten years before the request. This provision raises a serious difficulty of application in the case of donations relating exclusively to sums of money, whether bank transfers, delivery of checks or manual donations in cash, fully transmitted to the donee and spent by the latter. Indeed, the notion central of article R815-25, namely the "market value fixed on the date of the request, contradictorily and, failing that, according to an expert", is a concept specific to tangible or financial assets (real estate, portfolios of securities, business assets) whose value can be the subject of a contradictory evaluation or an expertise. However, in the case of a sum of money transmitted and consumed by the donee, no market value is not appreciable on the date of the request: the capital no longer exists in any assessable assets, neither with the donor nor with the donee. This textual ambiguity results in legal uncertainty which is detrimental to many policyholders who, having made cash donations to their children or descendants (often as part of the normal transfer of assets between generations) are subject to a tax liability. fictitious income calculated on the nominal value of the sums given, which can lead either to a refusal of a survivor's pension, or to a significant reduction in its amount, without the regulatory text explicitly providing for this for this type of operation. The deputy recalls in this regard that in French civil law, if sums of money technically constitute “movable property”, their fungible nature and their lack of value appreciable market value at a later date fundamentally distinguishes them from tangible movable property or securities covered by the logic of fictitious income. He also underlines that this question, raised during the 15th legislature by way of a written question (question no. 23942) remained without a government response, leaving this point of law unresolved. Consequently, he asks him if article R815-25 of the code of social security is intended to apply to donations relating exclusively to sums of money in cash, distinct from tangible movable property and securities; if so, on what regulatory or circular basis does the National Old Age Insurance Fund determine the “market value” of a sum of money transmitted and fully spent by the donee on the date of the survivor's pension application; if it plans to clarify the text of article R815-25, or to issue an interpretative circular, in order to explicitly distinguish cash donations from donations relating to movable property in the strict sense, for the sake of legal certainty for the millions of policyholders concerned and in order to avoid unequal applications depending on the regional funds.

Machine translation from French. The official text remains authoritative.

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