The social regime for business gifts is covered by Article L. 242-1-4 of the Social Security Code, paragraph 1 of which provides:
“Any sum or benefit allocated to an employee by a person who does not have the status of employer in return for an activity carried out in the interest of the said person is subject to social security contributions and contributions. »
Thus, when a business gift is offered as consideration for an activity carried out in the interest of the person offering it, said gift is treated as remuneration and subject to social security contributions as such. , at the expense of the offeror.
The notion of activity carried out in the interest of a third party was clarified by the interministerial circular of March 5, 2012 (No. DDS/5B/2012/56). Are covered by said circular, by way of illustration:
- stimulation operations aimed at increasing sales volume and/or market share;
- or the operations carried out with the aim of making the employee aware of the products or services of the third party , so that he can, if necessary, prescribe them outside, directly or indirectly, since the said sums or benefits would not have qualified as professional or business expenses if they had been paid by the employer.
The social system for business gifts subject to contributions and social security contributions is that of ordinary law.
A derogatory and more favorable social regime is however provided for business gifts which are granted under certain conditions: this is the discharge contribution regime.
Subject to the discharge contribution regime
The social regime of the liberating contribution allows the offeror to benefit from a single and fixed rate of 20%.
This rate is applied to business gifts given to a certain category of employees.
Paragraph 2 of Article L. 242-1-4 of the Social Security Code provides:
"In cases (i) where the employee concerned carries out a commercial activity or has a direct link with customers for which it is (ii) customary for a person third to the employer to allocate sums or benefits to the employee at As part of this activity, this third person pays the collection body on which it depends a contribution in full discharge ”.
Two cumulative criteria of subjection are thus targeted, that of the commerciality of the employee's activity and that of use.
With regard to the criterion of commerciality, it is irrelevant whether the target clientele is made up of natural or legal persons, it being specified that the direct link can be dematerialized and that it is not necessary that the employment contract of the employee concerned expressly qualifies as commercial.
With regard to the criterion of use, it means "a usual practice in the employee's sector of activity, regularly observed" (circ. intermin. of March 5, 2012, no. DDS/5B/2012/56) .
Said circular of March 5, 2012 establishes a list of business sectors that are deemed to meet these two criteria. These are:
- sales staff in the cosmetics, perfumery and parapharmacy sectors;
- sales staff in the distribution sector, specialized or not, and department stores;
- hotel porters;
- employees of the banking and insurance sectors in direct contact with customers;
- dealership sales staff;
- employees to whom benefits are granted in the form of gift vouchers (gift vouchers, gift cards, gift boxes, access to a gift catalogue, dematerialized where applicable, etc.) provided by third parties supplied by companies specializing in the issuance of these gift vouchers as part of sales stimulation or promotion operations, whatever the nature of the activity;
- employees placing financing in support of the sale of products and services offered by their employer.
The terms of application of the flat rate of 20% are determined according to the value of the benefit. When this is:
- between 0 and 15% of the gross value of the minimum interprofessional growth wage (SMIC) calculated for one month on the basis of the legal working time, no contribution or social security contribution is due;
- beyond 15% and up to 150% of the value of the gross monthly minimum wage, the 20% discharge contribution is due on the said fraction;
- beyond 150% of the value of the gross monthly minimum wage, social security contributions and contributions under common law are due on the said fraction.
The specific scheme for gift vouchers
The remittance of gift certificates, which meet the conditions of the contribution in full discharge, falls under a specific regime.
Indeed, for the gift vouchers which are granted to employees over the year on an exclusive basis within the framework of sales stimulation or , the discharge contribution:
- is not due on gift certificates whose value does not exceed 10% of the gross monthly minimum wage per employee and per transaction;
- is due on gift vouchers whose value is between 10% and 70% of the gross monthly minimum wage per employee and per transaction, within the limit of four transactions per year.
For gift certificates whose value exceeds for one or more transactions 70% of the gross monthly minimum wage, the discharge contribution applies for the fraction of all gift certificates given over the year between 15% and 150% of the minimum wage. gross monthly. The fraction exceeding said ceiling is subject to social security contributions and contributions under common law.
