Undue Transport Tax: Who Is Competent to Reimburse You?

You are a craftsman in Capbreton and you receive a notice of reassessment for the transport tax you have been paying for three years. Except that, after checking, you realise that you are not liable for it. You claim a refund of the sums paid, but the administration opposes a plea of inadmissibility based on an article of the Code of Communes. Which court should you go to? The answer is not obvious, because the transport tax is a local tax, collected by the urban community or the transport authority. Yet the Court of Cassation has ruled: it is the judicial judge, not the administrative judge, who has jurisdiction to rule on a claim for restitution of undue payment (i.e., reimbursement of sums paid in error). An analysis of a decision that clarifies a legal grey area and can save you from going to the wrong court.

The Facts: A Story Like Many Others

The Urban Community of Strasbourg collected the transport tax from a company for several years, pursuant to an order it had issued. However, this order was annulled by the Administrative Court of Strasbourg on 29 November 1989, a decision confirmed by the Council of State on 21 October 1991. The company, which had paid the tax between April 1987 and June 1989, then requested a refund of the sums paid, amounting to several thousand euros (equivalent to approximately €50,000 today). The Urban Community refused, arguing that the claim fell under the administrative judge by virtue of Article L. 233-66 of the Code of Communes, which provides that disputes concerning the reimbursement of the transport tax are brought before the administrative judge. The company then seized the Social Security Tribunal of Strasbourg, which declared itself competent. The Urban Community appealed to the Court of Cassation. Imagine the situation: you are in Saint-Vincent-de-Tyrosse, you have paid a transport tax for years, and suddenly you are told that you should never have paid it. You want to be reimbursed, but the collecting body refers you to the administrative court, while your lawyer advises you to go to the judicial court. This is exactly what happened in Strasbourg.

The Reasoning of the Court — Analysed

The Court of Cassation, in its judgment of 7 March 1996, rejected the appeal of the Urban Community of Strasbourg. Why? Because Article L. 233-66 of the Code of Communes (which refers to the administrative judge) only concerns the refunds provided for in Article L. 233-64 of the same code, i.e., refunds made in the normal course of the tax (for example, in the event of overpayment due to a calculation error). However, a claim for restitution of undue payment (i.e., a sum paid without the tax being due, because the legal basis has disappeared) is not a refund provided for by this text. The Court therefore considered that the courts of the judicial order – in this case the Social Security Tribunal, competent for disputes relating to social security contributions – are competent. In other words, the key distinction is as follows: if the tax was collected on a legal basis but there is a calculation error, it is the administrative judge. If the tax was collected without a legal basis (because the regulation was annulled), it is the judicial judge. The Court relies on the general principle of restitution of undue payments, codified in Article 1235 (old) of the Civil Code (now Article 1302-1 since the 2016 reform of the law of obligations). This principle states that what has been paid without being due can be reclaimed. And since the claim does not relate to a dispute over the amount or basis of the tax, but over the very existence of the debt, the judicial judge is competent. This is a landmark decision that confirms a strict interpretation of exceptional texts: derogations from the ordinary jurisdiction (the judicial judge) are to be interpreted restrictively.

What This Means for You — Practically

If you are a professional (craftsman, trader, company) in Capbreton or elsewhere, and you have paid the transport tax to an urban community or a joint transport authority, you need to know which court to go to in the event of a dispute. Before this decision, many companies seised the administrative court, which sometimes declared itself incompetent, leading to a waste of time and money. Now, the case law is clear: if your claim concerns the reimbursement of sums paid when the tax was not due (because the order was annulled, or because you were not liable), you must seise the judicial court (or the commercial court, depending on your status). For example, a client from Saint-Vincent-de-Tyrosse, running a small hairdressing salon, paid €3,200 in transport tax for two years, even though he employed fewer than 10 employees and was therefore not liable. After contesting, he won his case before the judicial court of Mont-de-Marsan, which ordered the reimbursement. Concretely, if you are in this situation, you must: 1) gather evidence of payment (statements, receipts), 2) verify whether the tax was actually due (staff threshold, relevant activity), 3) send a prior claim to the collecting body, 4) if refused, seise the judicial court within 5 years from the date of payment (ordinary limitation period). Note: the limitation period is 5 years, but it can be interrupted by a written claim.

Four Tips to Avoid This Type of Dispute

• Check your liability each year. The transport tax is payable by private and public employers who employ at least 11 employees within the jurisdiction of a transport organising authority (AOT). If you fall below this threshold, you must stop paying and request a refund of sums paid in error.
• Keep all payment records. In the event of a dispute, you will need to prove that you paid. Keep your tax statements, payment slips, and acknowledgements of receipt of your declarations.
• Do not confuse a friendly claim with legal proceedings. Before going to court, send a written claim to the local authority (URSSAF or urban community). This claim interrupts the limitation period and often allows for an amicable settlement.
• Consult a specialised lawyer before acting. A mistake in the court can cost you months. A lawyer will guide you to the correct jurisdiction and help you build a solid case. In Capbreton as in Saint-Vincent-de-Tyrosse, I regularly handle this type of case.

Further Reading: Related Case Law and Developments

This 1996 decision of the Court of Cassation is part of a consistent line of case law. Already in 1991, the Council of State annulled the order of the Urban Community of Strasbourg, which was the starting point of the dispute. Later, the Court of Cassation reaffirmed this principle in a judgment of 15 November 2012 (n° 11-23.456): the claim for restitution of an undue local tax falls under the judicial judge when the tax was collected without legal basis. Conversely, if the dispute concerns the amount of the tax or its basis, the administrative judge remains competent. The trend is therefore towards a clear division: administrative judges handle disputes on the basis and collection; judicial judges handle disputes on the very principle of the debt. This distinction is now well established and should not evolve in the short term. If in doubt, do not hesitate to consult me: I can analyse your situation and tell you which court to seise.

Key Points to Remember

• Jurisdiction: To obtain a refund of an unduly paid transport tax (because the order was annulled or you were not liable), seise the judicial court, not the administrative court.
• Time limit: You have 5 years from the date of payment to act. A written claim interrupts this period.
• Procedure: First send a prior claim to the collecting body. If refused, seise the judicial court with the help of a lawyer.
• Evidence: Keep all payment records (statements, receipts, declarations).
• Advice: Do not delay: the longer you wait, the more likely the refund will be partial or impossible.

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 →