The Messi case: the criminal risks of tax advisors

• Author: Juan Martin Queralt
• Pages: 251-272

Studi Tributari Europei 1/201 7

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The Messi case: the criminal risks of tax advisors*

Juan Martín Queralt 1

Table of Contents

1. A hot topic issue: the criminal responsibility of the tax advisor 2. The

authorship of the tax crime, strictly speaking, can only be imputed to the

taxpayer of a tax liability defrauded 3. The Spanish Supreme Court does not

admit the figure of the delegation and the consequences associated with it

in the tax compliance 4. The participation of third parties in the commission

of tax crimes. Dominant doctrine: the tax advisor as necessary co-operator

5. Conclusions

1. A hot topic issue: the criminal responsibility of the tax advisor

One of the features that draws great attention to who examines the case-

law is the frequency with which the Courts has recently ruled about

judgments related to crimes against the public finance. The phenomenon is

not exclusive to the Spanish legal system, but it is also observed in all

European Courts , including European Union courts.

In these judgments there are the following common notes: a) close relation

between Criminal law and Tax law, taking into account that criminal norms

defines the punishment but that refers to tax law to define the offence

(criminal law in blank); b) tendency towards the admissibility of the pursuit

of the administrative action -both tax settlement and tax collection-, thus

overcoming the paralysis of adm inistrative action that traditionally occurred

as a consequence of the principle of criminal prejudiciality ; c) dogmatic

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* How to quote this article: J.M. QUERALT, The Messi case: the criminal risks of tax advisors,

translated by SAT URNIN A MORENO GONZALEZ, Universidad de Castilla La Mancha, in Studi

Tri but ar i Europei, n. 1/2017 (ste.unibo.it), pp 251-272, DOI:!10.6092/issn.2036-3583/8779.

1Juan Martín Queralt, Full Professor of Tax Law and Public Finance at the University of

Vale ncia , Sp ain!

Studi Tributari Europei 1/201 7

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redraft of some criminal principles, especially exacerbated in the criminal

prejudicitality field and in the non bis in idem principle.

The abovementioned context is due to a main reason: the need to satisfy

the tax collection requirements of tax Administrations whose indebtedness

is contrary to the budgetary stability requirements promoted by European

Central Bank and International Monetary Fund.

The modification of that traditional dogmatic is also disturbed by other

circumstances that are present in the legal tax systems: the plurality of

sources of law (European, national, regional, etc); the complexity of tax

rules, which is associated with the overcoming of the thight national

territorial framework in which the rules used to produce their effects; the

necessary respect to the doctrine held by EU Courts and, finally, the

consequences that all this on the principle of legal certainty.

Considering the aforementioned factors, it is easy to conclude that several

difficulties arise when the requiriments of the tax system must be complied.

That difficulties are increased when what is at stake is the possibility -or

not- that its infrigment may cause an accusation for a crime against the

public finance. Indeed, it is the complexity of tax rules what explains why

both enterprises and natural persons turn to the advice of third parties -tax

advisors, accountability practitioners, etc.-, increasingly more frequently, to

comply with their tax liabilities.

It is just in this point where arises the requirement that the legal system

determines in which cases, under what conditions and under what

entitlement (co-operator, accomplice, instigator, etc.) these third

intermediaries can be accused of a crime.

Tra dit iona lly, th e c ase l aw c olle cte d the tri al s o rig in at ed by civ il cl aim s b y

those who felt injured by the advice of the tax advisor. The criminal

jurisdiction order, like the tax crime, (the so-called impossible crime given

its inanity) was barren for the tax practitioner in this point. Over time, and

especially since 90s, both civil and criminal ways have increased.

In the civil jurisdiction order, the claims have intensified as a consequence,

to a large extent, of the issues that the Tax law itself presents for the

correct compliance of tax duties. The telematic requirements, the extreme