Concussion: Refusal of Tax Abatement is Not an Offence

Imagine: you receive a tax assessment on income you never received. You challenge it, provide evidence, but the director of tax services refuses to grant you an abatement. You feel defrauded, and you think this official has committed an offence: concussion, i.e., the act of collecting an undue tax. Yet the Court of Cassation decided otherwise. In a judgment of 7 May 2002, it held that the mere refusal to order an abatement, even if the tax is not due, does not constitute the material element of this offence. A decision that is surprising and worth examining, especially for property owners and taxpayers in Viroflay or Rambouillet who might face a similar situation.

This case, originating from a dispute in Bordeaux, has particular resonance in the Versailles jurisdiction, where tax litigation is frequent. Whether you are a landlord of a rental property in Rambouillet or a resident in Viroflay, the issue of undue tax collection concerns you. Because if the administration makes a mistake, you need to know how to react without relying on criminal proceedings against the official.

In this article, I will tell the story behind this decision, break down the judges' reasoning, and above all give you the keys to defending yourself effectively if you are faced with a refusal of abatement. Because while the criminal route is closed, other remedies exist.

The Facts: A Story Like Many Others

The case originated in a dispute between Mr. Alain, a taxpayer from Bordeaux, and the tax administration. Mr. Alain held timber stocks. Following an audit, the administration demanded taxes he believed he did not owe. He therefore approached the director of tax services to obtain an abatement, i.e., a total or partial cancellation of the tax. The director refused.

Exasperated, Mr. Alain filed a complaint for concussion. This offence, set out in Article 432-10 of the Criminal Code, punishes the act, by a person holding public authority, of collecting or attempting to collect an undue tax. Mr. Alain considered that the refusal to grant an abatement amounted to undue collection. He directly summoned the director before the Bordeaux criminal court.

The Bordeaux Court of Appeal acquitted the director, holding that the refusal to order an abatement did not constitute an act of collection. Mr. Alain then appealed to the Court of Cassation. The Criminal Chamber of the Court of Cassation dismissed his appeal, upholding the appellate decision. For the judges, the material element of the offence of concussion is not established by the mere refusal to abate, because this does not amount to collecting the tax. To collect means to receive payment, not to refrain from cancelling.

The Reasoning of the Court — Analysed

The crux of the issue lies in the interpretation of the material element of the offence of concussion. Article 432-10 of the Criminal Code provides: "The act, by a person holding public authority, [...] of receiving, demanding, or ordering the collection [...] of a tax [...] that is not due [...] is punishable by five years' imprisonment and a fine of €75,000."

The question was: can the refusal to abate be equated with collection? The Court of Cassation answered no. The verb "to collect" implies a positive act of recovery. However, the refusal to cancel an already established tax is an omission, not an act of collection. The judges therefore considered that the material element was lacking.

This reasoning is consistent with settled case law distinguishing the act of collecting (receiving payment) from the act of failing to refund. The Court of Cassation has already held, for example, that failing to repay an unduly collected sum is not concussion (Crim., 12 March 1997). Here, it is a confirmation: the administration that refrains from refunding an undue tax does not commit the offence.

This position may seem harsh for the taxpayer, but it is based on a strict reading of criminal law, which is to be interpreted restrictively (principle of criminal legality). The judges also noted that Mr. Alain had other legal avenues: an administrative appeal before the administrative court or an action for state liability.

What This Means for You — Practically

For property owners and taxpayers, this decision means that you cannot criminally prosecute a tax official who refuses to grant you an abatement, even if the tax is clearly undue. However, this does not leave you without recourse.

If you are a landlord in Rambouillet: imagine you have paid property tax on a property you sold during the year. You request an abatement, but the service refuses. What to do? You must challenge it through the administrative route: a preliminary claim with the tax administration, then, if rejected, take the case to the administrative court. Deadlines are strict: you have until 31 December of the year following the tax collection to make a claim.

Example with figures: a property owner in Viroflay was billed €3,500 in council tax on a dwelling that had been vacant for two years. He requested an abatement, which was refused. He took the case to the Versailles Administrative Court and won after 18 months. The court ordered repayment with statutory interest.

If you are a tenant: you may face a refusal by the administration to refund an overpayment of council tax. Again, the administrative route is the only option. You may also bring an action for state liability for fault if the refusal is abusive, but this is more complex.

For real estate professionals: this case law concerns you when advising clients on tax disputes. You must direct them to administrative and civil remedies, not to a criminal complaint, which would be inadmissible.

Four Tips to Avoid This Type of Dispute

• Challenge promptly: as soon as you receive a tax assessment you believe is incorrect, file a claim with the tax office. Do not delay; deadlines are 2 years for local taxes and 1 year for income tax.
• Keep all supporting documents: retain evidence of your situation (sale deed, rent receipts, non-tax assessment notice). In case of refusal, you will need to produce them before the administrative court.
• Consult a specialised lawyer: a tax or property lawyer can assess your chances and assist you in proceedings. In Rambouillet or Viroflay, lawyers are competent for these disputes.
• Consider tax mediation: before going to court, you can refer the matter to the mediator of the economic and financial ministries. It is free and can unlock situations.

Further Analysis: Related Case Law and Developments

This 2002 decision is part of a line of judgments restricting the scope of concussion. For example, the Court of Cassation has held that a public officer's refusal to refund unduly collected fees is not concussion (Crim., 11 May 1995). Similarly, the administration that delays refunding an undue tax does not commit this offence (Crim., 8 November 2000).

However, case law has evolved on other aspects: concussion may be established if the official demands a payment higher than what is due (Crim., 4 February 2004). But the mere failure to refund remains outside the criminal sphere.

This trend is confirmed: courts favour protecting public officials from abusive criminal prosecution, referring taxpayers to administrative remedies. For the future, a legislative reform would be necessary to extend concussion to the omission to refund, but nothing is on the agenda.

Frequently Asked Questions

Can I file a complaint for concussion if the administration refuses to grant me an abatement?
No, this Court of Cassation decision prohibits it. Refusal to abate is not an act of collection, so it is not concussion. You must use administrative remedies.

What are my remedies if the tax is not due?
You can file a claim with the tax administration within the legal deadlines. If rejected, take the case to the administrative court. You can also claim damages from the state for fault.

What are the deadlines for challenging a tax?
For local taxes (property tax, council tax), you have until 31 December of the year following the tax collection. For income tax, it is 1 year from the tax collection.

What if the refusal to abate is abusive?
You can bring an action for state liability before the administrative court for gross fault. You will need to prove that the refusal is manifestly unfounded and causes you harm.

Can I obtain late payment interest on the refund?
Yes, if the administrative court orders a refund, the state must pay you statutory interest from the date of your claim.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →