Editorial

Aggressive tax optimisation?

Mis à jour le 01.06.2017

Intervention du bâtonnier Frédéric Sicard à Essen le 25 mai 2017

It’s common practice to break the ice by starting your speech with a joke.

But on topics like secrecy and tax optimisation, I am unable to joke.

Current events have become too serious.

I should have no reason to worry in Paris, since there have been no tax-related investigations for 2 years.

No Parisian lawyer has been investigated following the revelations of the Panama Papers, probably because none of them are involved.

Well, there was a big lawsuit against one lawyer for helping an heiress conceal her assets, but the circumstances of the case were such that the trivial conviction cannot be considered a matter of principle.

But I am worried.

The French public prosecutor for financial matters, which is the authority in France in charge of combatting tax evasion on a national level, used to state in its documentation that lawyers act as intermediaries to facilitate tax evasion.

I strongly protested and the authorities therefore promised to rectify these documents stating that this was a drafting error.

In Europe, at the request of French Commissioner Moscovici, a commission has been set up on the Panama Papers, and I was surprised to learn that the representative of the French government had lambasted lawyers, saying that they aren’t active enough in the fight against tax evasion.

I then received a letter of apology, acknowledging that lawyers are doing their utmost to control the manipulation of funds by organising five levels of ex ante controls in addition to the ex post controls to prevent lawyers from engaging in illegal acts.

But, on the 3rd May 2017, Commissioner Moscovici announced that the Commission was going to propose a directive on tax intermediaries in June 2017.

This will include new sanctions, targeting all intermediaries, with no profession being an exception, that is to say, including lawyers.

I am worried, because the OECD also wants Governments to strengthen the rules and crack down on lawyers and has asked for the opinion of the IBA, as if the IBA represents the profession rather than being just an association.

Obviously, I agree with the so-called “Berlin paper” protest.

For centuries, it has been our elected representatives who define our rules, not free associations that represent only their own voluntary members.

As for me, as representative of the lawyers of Paris, I will not let anyone answer these two questions in my place:

  • what is covered by our secrecy?
  • what is tax evasion?

We know that in Germany secrecy is so important that it is fundamental to the exercise of the profession.

But this secrecy cannot be used to cover up offences.

Any lawyer who commits an offence is a criminal and secrecy cannot be used as justification for concealing an offence.

This is also why lawyers have never allowed governments to define their secrecy.

Lawyers manage the limits of secrecy themselves.

If we consider that these limits are those of the offence and that it is possible for tax to be an offence, it will be up to the profession to provide a definition of the aggressive tax planning that our governments would make illegal.

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It is our job to ensure the best application of the law and therefore its optimisation.

Our clients are entitled to the best tax advice, that is to say, to benefit from tax breaks where the law provides for them.

If the law does not want optimisation, then the law needs to prevent it.

We take advantage of a favourable tax law because there is one.

It is the legislators that are in fact responsible for providing the favourable tax law.

How can a client be convicted for taking advantage of a law? How can a lawyer be convicted for advising his client to take advantage of a law?

Our governments are saying that now, in addition to tax evasion, which is a well-established offence, there could be acceptable tax planning and excessive tax planning which would be considered reprehensible because aggressive.

We need to find a definition that can be accepted in all the countries concerned.

If a new concept is to be applied in order to raise more taxes, it is up to the profession to take action.

The legal profession is the custodian of its own rules, of its own secrecy, in the interest of its clients.

It is up to the profession to set the potential limits.

I, for one, suggest a definition inspired by a statement by our previous Minister of the Economy and Finance, Michel Sapin, who proposed a definition in his New Year address.

In his statement, he said that aggressive tax planning which eliminates all taxation and leaves nothing for the community should be condemned.

This would therefore be tax planning that results in the client no longer paying any tax, as opposed to tax planning pursuant to which the client pays less tax.

This statement caught my attention because it was not written down anywhere and no journalist commented on it.

I know that if we do not act quickly to define tax evasion, we will become prisoners of our governments.

Our profession cannot allow the imposition of a rule that it hasn’t accepted.

Lawyers are the custodians of their clients’ freedom to access law and justice.

So, we need to respond quickly.

I can only protect the lawyers of Paris, but you should know that it is indeed my intention to do so.

I want my Order to provide a definition for the lawyers of Paris in order to offer them better protection.

I hope you will do the same and that we can cooperate on this.

Ideally, by the end of this summer, we should come up with a definition that is the same for all of us, in all the bar associations of all the countries concerned.

We need to join forces.

Frédéric Sicard
President of the Paris Bar Association