Tax consultants: towards increased responsibility and strengthened supervision

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Tax advisers play an essential role in supporting businesses and individuals to control their taxation while complying with legal obligations. However, this mission involves increased responsibility, especially as the law regulates tax practices more and more strictly. Recently, the accountability of tax advisers has intensified with the introduction of new provisions in the finance law for 2024, in particular article 1744 of the General Tax Code.

A responsibility governed by law

Tax consultants, whether lawyers, accountants or notaries, are required to provide advice in accordance with current tax regulations. Its responsibility may be incurred in the event of malpractice, in particular in the event of erroneous advice or omission that caused harm to the client.

This responsibility can take many forms:

- Civil liability: in the event of a breach of his duty to advise, he may be ordered to repair the damage suffered by his client.

- Criminal liability: if the counsellor is actively involved in a pattern of tax evasion or fraud, he can be prosecuted for complicity.

- Disciplinary responsibility: professional orders (Order of Chartered Accountants, Bar of Lawyers, Chamber of Notaries) can sanction practices contrary to their ethics.

The increasing accountability of tax advisers

Faced with the multiplication of abusive tax optimization schemes, the legislator has gradually strengthened the responsibility of tax intermediaries. The European DAC 6 directive, transposed to articles 1649 AD and following of the General Tax Code, already requires advisers to declare potentially aggressive tax arrangements. Article 1729 C of the same code establishes a fine of up to 10,000 euros in the event of non-compliance with this obligation.

However, lawyers will be able to benefit from an exemption allowing them to oppose this obligation. respect for professional secrecy. However, other professions (notaries, chartered accountants, etc.) will be excluded from this exemption, and are therefore fully subject to these declarations.

Article 1744 of the General Tax Code: a major turning point

The finance law for 2024 introduced a key provision in article 1744 of the CGI, which provides for the possibility of prosecuting tax advisers who have transmitted to their clients ways of committing tax evasion.

In other words, if a tax adviser has played a decisive role in the development or implementation of a tax fraud scheme, he may be sentenced to heavy sanctions since this provision provides for a sentence of up to five years in prison and a fine of 500,000 euros. This text is a major advance in the fight against tax fraud but now requires professionals to take great care.

The impact of this provision is all the more important because the introduction of public action can take place without the special Bercy lock procedure, leaving the judicial authority free to initiate proceedings.

Consequences for tax consultants

This new framework requires tax advisers to be extra careful:

- Increased vigilance on complex arrangements: an advisor must ensure that the transaction proposed to his client respects strictly the law.

- Rigorous documentation: keep a traceability of advice data and supporting documents attesting to the adviser's good faith in the event of an inspection.

- Preventive declaration: in case of doubt, making a tax rescript can help to secure the operation. In addition, since January 16, 2025, this procedure has been dematerialized, which facilitates access.

The introduction of article 1744 CGI and the strengthening of transparency obligations mark a paradigm shift for tax advisers. In the future, they will no longer be simple intermediaries but real guarantors of tax compliance. It is now up to them to adopt an even more rigorous posture, both to protect their customers and to avoid a potentially heavy liability commitment.

This evolution is part of a wider logic of combating tax fraud, aimed at empowering all actors involved in the tax chain. Tax advisers must therefore adapt their practices to anticipate these new requirements and ensure exemplary compliance.

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