The social security treatment of business gifts is governed by Article L. 242-1-4 of the Social Security Code, paragraph 1 of which provides:
"Any sum or benefit granted to an employee by a person who is not an employer in return for work performed in the interest of that person is subject to social security contributions."
Thus, when a business gift is offered as consideration for an activity carried out in the interest of the one who offers it, the said gift is treated as remuneration and is therefore subject to social security contributions and levies, payable by the offeror.
The concept 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). The following are examples of such activity:
- incentive operations aimed at increasing sales volume and/or market share;
- or operations carried out with the aim of raising employee awareness of the products or services of the third party , so that he can, if necessary, prescribe them outside, directly or indirectly, provided that the said sums or benefits would not have been classified as professional or business expenses if they had been paid by the employer.
The social security regime for business gifts subject to social security contributions is that of common law.
However, a special and more favourable social security regime is provided for business gifts which are given under certain conditions: this is the regime of the discharge contribution.
Subjection to the discharge contribution regime
The social security scheme for the discharge contribution allows the offeror to benefit from a single, flat-rate fee of 20%.
This rate is applied to business gifts that are given to a certain category of employees.
Paragraph 2 of Article L. 242-1-4 of the Social Security Code provides as follows:
"In cases (i) where the employee concerned carries out a commercial activity or an activity directly related to customers for which it is (ii) customary for a third party to allocate sums or benefits to the a discharge contribution to the collection agency on which it depends ."
Two cumulative criteria for liability are thus targeted: the commercial nature of the employee's activity and the customary use.
With regard to the commerciality criterion, it is irrelevant whether the target clientele consists of natural or legal persons, it being specified that the direct link can be dematerialized and that it is not necessary for the employment contract of the employee concerned to expressly qualify him as commercial.
As regards the criterion of use, it is understood as "a usual practice in the employee's sector of activity, regularly observed" (interministerial circular of March 5, 2012, No. DDS/5B/2012/56) .
The aforementioned circular of March 5, 2012, establishes a list of business sectors 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 in department stores;
- hotel porters;
- employees in the banking and insurance sectors who have direct contact with customers;
- dealership sales staff;
- employees who are granted benefits in the form of gift vouchers (gift vouchers, gift cards, gift boxes, access to a gift catalogue, where applicable dematerialized, etc.) provided by third parties supplied from companies specializing in the issuance of these gift vouchers as part of sales stimulation or promotion operations regardless of the nature of the activity;
- employees placing funds to support the sale of products and services offered by their employer.
The application of the 20% flat rate is determined based on the value of the benefit. When this value 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 hours, no social security contributions are due;
- beyond 15% and up to 150% of the value of the gross monthly minimum wage, the 20% discharge contribution is due on said fraction;
- beyond 150% of the value of the gross monthly minimum wage, standard social security contributions are due on said fraction.
The specific regime for gift vouchers
The distribution of gift vouchers, which meet the conditions of the discharge contribution, falls under a specific regime.
Indeed, for gift vouchers granted to employees during the year exclusively as part of incentive or sales promotion , the tax-deductible contribution:
- is not due on gift vouchers 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, up to a limit of four transactions per year.
For gift vouchers whose value exceeds 70% of the gross monthly minimum wage (SMIC) for one or more transactions, the flat-rate contribution applies to the portion of all gift vouchers distributed during the year that falls between 15% and 150% of the gross monthly minimum wage. The portion exceeding this threshold is subject to standard social security contributions.
