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World: capital gains: The notary also engages his responsibility

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the obligation of advice of the notary, it is not only words. The Court of Cassation has just recalled in a recent stop. A notary who is aware of the false tax return of his client on the occasion of a real estate sale, and leaves the sale to be done, may be condemned, under the former Article 1382 of the Civil Code (now 1240) . In a recent case , a seller claimed the exemption from real estate capital gains from Article 150-U-II-1 ° of the CGI, applicable when the assignment of the cedor's main residence. Provisions that therefore exclude property that no longer constitute the principal residence on the day of sale.

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What were the facts? This particular had sold two lots of a real estate complex in 2011. In the authentic deed passed before notaries, it was indicated that the property was the principal residence of the seller. But this one has been the subject of a tax recovery three years later, the taxes considering that it was not the case. The seller then returned against the notaries, who had mentioned that the well sold constituted his principal residence and that the assignment was exempt from the capital gain tax.

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knowledge of the "falsity of the statement" on appeal, the judges considered that the seller was at the origin of his tax adjustment, and that he was not possible for him to impute him "to a fault of the Notaries who do not have a duty of absolute counsel at their expense, not being accountable of the real place of establishment of their client ". There is nothing for the Court of Cassation, which invalidates this decision. According to the High Jurisdiction, "it resulted from these findings that the notaries were aware before the sale of the falsity of the assertion that the property was the principal residence on that date. Of the person concerned.

Court of Cassation, Civil Chamber 1, 22 September 2021, 19-23.506.

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