Presumption of salaried status for a foreign artist

Further to an audit, URSSAF imposed a payment of back-taxes on the centre européen d’éducation permanente (European centre for lifelong learning) for failing to pay contributions on sums paid to foreigners working as performers, IT assistants, coordinators or teachers.

Nb > Since its application to have the back-payment cancelled was dismissed by the URSSAF’s amicable settlement commission, the centre européen d’éducation permanente referred the matter to the social security arbitration tribunal, which also dismissed its appeal and sentenced it to pay the outstanding amount to URSSAF.

The court of appeal and the court of cassation unanimously cite the principle whereby any monies paid to workers in return for or on the occasion of work performed in a relationship of subordination are included in the taxable basis for social security contributions as defined by the Social security code¹.

This matter raises the problem of characterizing a relationship of subordination.

With regard to foreigners hired to carry out duties other than those of an entertainment artist, the court of appeal stated that the fact that lessons are given to trainees at the centre européen d’éducation permanente, in its premises, at mutually agreed times that must however be kept to, that travel expenses are refunded against receipts, and that teachers incur none of the risks incurred by the self-employed, is enough to characterize the relationship of subordination.

The court of cassation dismissed the appeal ruling and reverted to the position taken by the Social Division in 1996². The notion of organized service upheld by the court of appeal merely constitutes an assumption of a relationship of subordination.

“In failing to ascertain whether the conditions of the organized service and the amounts paid to the interested parties were set unilaterally by the centre européen d’éducation permanente, the court of appeal did not give any legal grounds for its ruling”.

With regard to foreigners hired as entertainment artists, the solution is unanimous, there is no need to find and characterize a relationship of subordination.

If a foreigner is paid for his work as a performer, his contract is presumed to be a work contract under article L762-1 of the Labour code.

In conclusion, the need to prove there is a relationship of subordination varies according to whether the foreigner is hired as a teacher, IT assistant, coordinator or performer.

In the first case, the existence of a work contract is proven if a relationship of subordination is characterized.

On the other hand, in the second case, for a foreigner hired as an entertainment artist, proof of a relationship of subordination is not required, and salaried status is presumed if the payment is made in return for artistic services.

See also : Foreign artist hired by a company based in France  and  Presumption of salaried status: exclusion of european artists working on a temporary and freelance basis

¹ Article L242-1 of the Social Security Code
²  Court of cassation, Social Division, 13 November 1996, no. 94-13187