You can run a clandestine gambling den and win the bet against the customs administration three times.
It is this grand slam that Roger B., a former owner of an informal gaming circle in Bagnolet (Seine-Saint-Denis), achieved.
Before the court of Meaux (Seine-et-Marne), before the Paris Court of Appeal and very recently before the Court of Cassation, this restaurateur has won a series of victories on the tax side of his case.
Each time, the justice recognized that the customs had imposed a largely excessive tax rate.
The merchant unfortunately did not have the satisfaction of tasting his victory: he died last October at the age of 61.
Steaks and fries ... and parts of rummy ball
In January 2013, the Parisian PJ's banditry repression brigade (BRB) arrived at Chez Marco, a bar restaurant in Bagnolet.
Thanks to anonymous information supported by their investigations, investigators are convinced that the place does not only serve steak and fries.
Two years earlier, a police check had already revealed that customers were playing paid card games.
The new surveillance shows that the establishment's iron curtain is lowered in the late afternoon while customers, some known to be problem gamblers, are still inside.
During the descent of January 2013, five players are in the middle of a “rummy ball” game.
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During the investigation, Marc-André Z., the manager, and his brother-in-law, Roger B., admit that they organize illegal gambling games, in particular games of rummy and its different variants.
Stakes are on average 50 euros.
At the end of the investigation, they were both sentenced to suspended prison sentences and fines by the Bobigny Criminal Court in February 2018.
So much for the penal aspect.
But on the fiscal ground, the game will not take the same turn.
Following on from the intervention of the police in 2013, the customs administration entered the scene to signify a series of breaches of the general tax code.
Because in law, even if a profit is drawn from an illegal activity, it does not escape compulsory deductions.
3000 to 5000 euros in earnings per day
In 2014, customs issued to the order of Roger B. a tax recovery notice of 1,164,839 euros for the years 2011, 2012 and 2013. To arrive at this figure, the administration adopted as base the turnover of the gambling den.
Based on the statements of the respondents, the agents estimated that the amount of the games amounted to 3000 euros per day and 5000 euros on Saturdays.
By applying the rate relating to each tranche of revenue, they resulted in this substantial sum of more than 1.1 million euros.
But, from the outset, Roger B. contested this calculation and attacked the customs in civil matters.
“The general tax code indicates that the pot, which serves as a reference amount for calculating the tax, does not correspond to the total sum of the stakes but to the profit which is drawn from it by the operators.
Or, in this case, 10% of the euros wagered each day, explains Me Caroline Wassermann, his lawyer.
The basis used by customs to fix the amount of recovery is false.
"
The court sets the new tax at… 57,086 euros
This argument has been fully accepted by the courts.
“The gross product of the games represents the amount of the bets on which are then deducted the remuneration paid by the operator to the players;
the gross gaming revenue is therefore the gross profit of the establishment, ”recalls the Meaux tribunal de grande instance in a judgment of January 2017.
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"It is common ground that the tax base set by the administration is incorrect and therefore the recovery notice issued on June 26, 2014 is also", details the judgment which therefore sets the new amount of the tax to be paid by Roger B. to… 57086 euros, far from the 1.1 million euros claimed.
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In October 2018, the Paris Court of Appeal, seized by customs, confirmed this judgment.
The administration did not stop there and filed an appeal in cassation.
Another failure.
On March 3, the Court of Cassation said for the third time that the tax base "consists of the full amount of the stakes, from which must be deducted the sums which are returned to the players for their winnings".
“This is a very important decision, greets Me Caroline Wassermann. The persistence of customs was not without consequences for my client, who died last October. The lawyer finally recalls that Roger B. died innocent. The latter had appealed his criminal conviction or the judgment of the Court of Appeal, which confirmed the conviction of Marc-André Z., was issued on October 19, 2020, thirteen days after his death.
