A responsibility governed by law

Tax consultants, whether lawyers, accountants or notaries, are required to provide advice in accordance with current tax regulations. He may be held liable in the event of professional misconduct, in particular in the event of erroneous advice or omission that caused harm to his 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 compensate for the damage suffered by his client.
• Criminal responsibility: if the adviser is actively involved in a scheme of tax evasion or fraud, he may be prosecuted for complicity.
• Disciplinary responsibility: professional bodies (Order of Chartered Accountants, Bar of Lawyers, Chamber of Notaries) may punish practices that are 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 report 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 may benefit from an exemption allowing them to oppose this obligation with respect for professional secrecy. Other professions (notaries, accountants, etc.) remain fully subject to this reporting requirement.

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 advisor has played a decisive role in the development or implementation of a fraud scheme, they may face severe penalties — up to five years in prison and a fine of 500,000 euros. This text marks 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 significant as the introduction of public action can take place without the special “Bercy lock” procedure, leaving the judicial authority with the possibility of directly initiating proceedings.

Consequences for tax consultants

This new framework requires tax advisers to be extra careful:

• Increased vigilance on complex assemblies: An advisor must ensure that the transaction proposed to his client strictly complies with the law.
• Rigorous documentation: maintain a traceability of the advice given and supporting documents attesting to the good faith of the advisor in the event of an inspection.
• Preventive statement: In case of doubt, recourse to a tax decree can secure the transaction. Since January 16, 2025, this procedure has also been entirely dematerialized.

Conclusion

The introduction of article 1744 of the 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 a more rigorous posture, both to protect their customers and to avoid an increased risk of liability.

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

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