d’Alvernews: tax audits and professional secrecy

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Tax reassessment based on correspondence between taxpayer and lawyer overturned!

The June 27 ruling by the Versailles Administrative Court of Appeal is an important decision, as it deals with the consequences of a breach of attorney-client privilege by the tax authorities during a tax audit of a taxpayer (CAA Versailles, June 27, 2023, n°21VE00337).

In this case, in order to justify a company’s corporate income tax reassessment, the tax authorities expressly referred to correspondence between the company and its lawyer, recovered during the tax audit from the Customs Department by the tax authorities (DGFIP) as part of the auditing department’s exercise of its right of communication (art. L.81 et seq. of the Livre des Procédures Fiscales).

Correspondence exchanged between a lawyer and his client, in particular legal advice given by the lawyer to his client, is covered by professional secrecy under article 66-5 of the law of December 31, 1971.

Consequently, in the absence of the taxpayer’s prior consent, the Court found that professional secrecy had been breached, and ruled that revealing the contents of correspondence exchanged between a taxpayer and his lawyer :
i. vitiates the taxation procedure carried out against the taxpayer,
ii. which results in the taxpayer’s tax liability being discharged.

Consequently, if the tax authorities decide to base the reasons for a tax audit on correspondence between a lawyer and the taxpayer, the taxpayer’s express agreement must be sought.

Failing this, the tax authorities will have committed a procedural error serious enough to invalidate the tax reassessment.