LE CERCLE - Penal sanctions for tax advisers and intermediaries (notaries, lawyers, advisers
assets), remuneration of informers, accumulation of criminal and fiscal sanctions, imprescriptibility of the
money laundering, warrant of deposit… The repression of tax evasion continues to harden in the
point of creating a real French exception. (By Robin Binsard, lawyer at the Paris Bar)
While a four-year prison sentence accompanied by a warrant of committal
recently pronounced by the 31st chamber of the Paris Criminal Court on September 13, and
that the recent law of October 23, 2018 has once again strengthened the arsenal of the fight against fraud
tax, it is appropriate to question the excessive, disproportionate and exorbitant nature of the
criminal prosecution of tax evaders.
A crackdown on tax advice initiated by judges and enshrined in law
While the report of the PANA commission in 2017 denounced "the asymmetry
regulation between countries of the framework for tax advice practices", it is clear that
note that the legislator has chosen to firmly increase the penalties incurred by
tax advisers, whether notaries, lawyers, accountants or asset managers.
The first stage was carried out by the jurisprudence of the correctional courts. In
the Ricci affair, the lawyer of the heiress was condemned as an accomplice of
the heiress, for having assisted in the fraudulent organization of her insolvency. In
first instance, the penalty of fiscal solidarity had been pronounced, so that the council incurred the
payment of a fraud estimated at more than 10,000,000 euros of which there had been neither
the initiator, nor the beneficiary, nor even the mastermind. Fortunately, this sentence was set aside on appeal.
in favor of a fixed fine of 10,000 euros against the lawyer.
Professionals from the accounting, legal and financial sectors targeted
In the Wildenstein case, the family notary was sent back to the criminal court as
as an accomplice to tax evasion. The defendants were acquitted, in that the law applicable at the time did not
provided for no obligation to declare assets held in trusts abroad. That
decision of perfect legal orthodoxy recalls the importance of the fundamental principles
criminal law, including tax matters.
The law of October 23, 2018 marks a second stage, that of the registration in the law of a
administrative fine for professionals in the accounting, legal and financial sectors who have provided
an advisory service to the author of a serious tax breach. MP's words
Karine Berger resonate: "there may be even worse than not wanting to pay your tax, that
whether you are an individual or a company, it is the act of advising one or the other
so that he does not pay the tax".
Remuneration of informers and cumulative proceedings
"Tax advisors" can now be rewarded by the tax authorities by
function of fraud they denounce, as formalized by a decree of April 21, 2017. The
compensation is discretionary, and must take into account "the fiscal interest of the State" and
of the "precise role of the adviser". An entire program…
If their denunciation turns out to be correct, it will allow the initiation of a tax audit,
as well as criminal proceedings if the amount of rights evaded or the complexity of the arrangement are sufficiently serious. Indeed, in the same way as in Italy, the accumulation of tax procedures and
administrative is accepted in France, so that the same failure can be sanctioned twice
times, which constitutes a derogation from the principle of non-bis in idem enshrined in Article
14 paragraph 7 of the International Covenant on Civil and Political Rights.
In addition to the double criminal and tax procedure, the repression of tax evaders can also be carried out
on the basis of laundering tax evasion. Any declarative breach includes, by definition, the
concealment of capital, so that a tax evasion operation necessarily involves the
carrying out a laundering of this same offence. However, the offense of money laundering being a
concealed offence, its limitation period does not count until the discovery of the offence,
so that it is, in practice, an almost imprescriptible offence. In other
terms, in the case of a prescribed tax evasion, the administration can always prosecute and
sanction the fraudster on the basis of money laundering .
The exceptional severity of the sanctions
Moreover, the public prosecutor also has the possibility of prosecuting the same person on the
double basis of tax evasion and its money laundering , even though case law prohibits the
accumulation of theft and concealment for the same person. In addition, the 80% increase, the fine
pronounced for tax evasion can reach 3,000,000 euros or double the proceeds from
the offence, to which should be added the penalty of confiscation of assets specific to the
money laundering.
Deprivation of liberty is also a hypothesis, in that article 1741 of the General Code of
taxes provides for "a seven-year prison sentence". The recent incarceration of
Mayor of Levallois initiates a paradigm shift, that of the advent of the warrant of deposit
for tax evaders – a first in this area, except in cases of recidivism.
Such a choice of penal policy raises questions about the meaning of the penalty, whose functions are
"to ensure the protection of society, to prevent the commission of new offences, to
restore social balance, punish the perpetrator of the offense and promote his
amendment, its insertion or its reinsertion". It is difficult to understand how the deprivation of freedom of
the author of an offence, whose damage is only economic, is likely to
restore the social balance or allow the amendment of anyone.
Robin Binsard is a lawyer at the Paris Bar