Saturday, 22 January, 2022

The hunt for super tax evaders is on

It must be the symbol of a bygone era, that of the impunity of the powerful who do not pay their taxes. Next May, the Balkany couple, dinosaurs of French politics, will be tried in Paris for aggravated tax evasion and money laundering. Justice accuses them of having set up a network of foundations in Liechtenstein and front companies in Panama to conceal their heritage: a four-hectare property with a mill, in Giverny, a villa with swimming pool and tropical garden. in Saint-Martin, in the West Indies, and a palace in Marrakech. All estimated at more than 13 million euros.

To corner the mayor of Levallois, the tax authorities of course mobilized but also the National Financial Prosecutor’s Office (PNF) and investigators from the central police office specializing in fraud (OCLCIFF), while the High Authority for transparency of Public Life (HATVP) compounded the accusation. All these institutions, with barbaric acronyms, were created after the discovery of the Swiss account of the former Minister Jérôme Cahuzac. They embody the hardening of the hunt for big fraudsters. A trend accentuated by the recent law passed by Minister Gérald Darmanin.


Bercy still remains the main rectifier of tax wrongs, in particular its elite unit, the National Directorate for the Verification of Tax Situations (DNVSF), responsible for monitoring, in conjunction with the HATVP, the richest and elected officials. “A third of our files are related to foreign accounts or false tax domiciliation, the rest concerns sales of companies, real estate or profit-sharing arrangements”, explains his boss, Alexandre Gardette. Pointed out by the Court of Auditors in 2010 for its poor performance, the DNVSF has since increased its revenues from 320 to 803 million euros. Last year, the median recovery amounted to 95,000 euros, the largest reaching … 100 million.

Bercy lock bypassed

Difficult to know who it concerns because of the sacrosanct fiscal secrecy. But that could change with the law of October 2018, which provides that all cases over 100,000 euros are sent to justice. It is a notch in the famous “lock of Bercy”, which reserves to the tax authorities the monopoly of prosecutions for fraud and imposes to pass the files of unscrupulous taxpayers through the sieve of an administrative commission. At the head of the PNF, prosecutor Eliane Houlette had already gotten into the habit of bypassing Bercy by launching investigations for laundering tax fraud. A trick that made it possible to prosecute Jérôme Cahuzac without involving the tax authorities.

The prosecution also used it to strike quickly after the revelations of the Panama Papers, triggering investigations against the actress Isabelle Adjani, the rugby player Philippe Sella or the Papillaud family, 76th French fortune, suspected of having concealed millions of dividends in the Luxembourg. “The PNF’s rapid and media mobilization had a dissuasive effect, greets Alexandre Gardette. Large families spontaneously came knocking on our door to confess. “

The prosecution entrusts most of its investigations to the sleuths of the OCL-CIFF and its tax brigade made up of police officers and tax inspectors, whose means of investigation are broader than those of the tax authorities. “We can conduct searches everywhere, follow-up, locate and place telephones on tap, explains Thomas de Ricolfis, the head of the office, who welcomes the legislative progress. They make it easier to extend our investigations over time and to have direct access to databases on real estate and companies. ” The brigade has proven its worth, closing 200 cases since 2010 including those of Jérôme Cahuzac and fraudsters from the HSBC list.

Tougher penalties

But, like the magistrates of the PNF, the 43 tax investigators of the office are overwhelmed with cases, with 190 procedures in progress. The police having difficulty filling the posts, Bercy took the opportunity to claim his own judicial brigade. An old dream of the tax authorities who never appreciated sharing power with the interior. The executive decided by soon creating a new brigade of 25 tax officers placed within the judicial customs in Bercy. This judgment of Solomon hardly convinced the Council of State, which would have preferred to reinforce the current brigade and fears a war of the police forces.

Other flagship measures of the Darmanin law: the extension of the limitation periods and the hardening of sentences, which now go up to seven years in prison and 3 million euros for the fine, or even double the proceeds from the ‘offense. And, unless the judge decides otherwise, the verdict will be released to the public.

But, for now, the results obtained in the courts are mixed. Certainly, “small” fraudsters from the HSBC list were heavily condemned and elected officials suffered the horrors of a public trial, like Jérôme Cahuzac, Serge Dassault (absent at the hearing) or even Dominique Tian. The former LR deputy, a major defender of social fraud, had an account in Switzerland and was sentenced at first instance to three years of ineligibility and a fine of 1.45 million euros. But the PNF suffered a stinging setback against the art dealer Guy Wildenstein. After a historic recovery of 550 million euros, he was released because of the legislative vagueness that then surrounded the trusts. “For the moment, it is still old cases that are being judged, nuance a magistrate. The high courts have a heavier hand, but, on appeal, the accused is often more conciliatory and the judges tend to soften the sentences. ” Jérôme Cahuzac was thus sentenced to two firm years instead of three, allowing him to adjust his sentence and escape prison. Similarly, Arlette Ricci, heir to the fashion house Nina Ricci, harpooned on the HSBC list, saw her prison sentence commuted to a suspended sentence, while her tax lawyer only received a fine.

Virtues of pleading guilty

In addition, the prosecution often has to face a judicial guerrilla war. Eliane Houlette thus denounced a “Excessive use of remedies” in his speech at the start of the 2019 school year. This is the case in the Wendel affair: an acrobatic incentive arrangement, which allowed Ernest-Antoine Seillière, Jean-Bernard Lafonta and twelve executives to share 300 million euros in 2007. Twelve years later, the trial has still not taken place, the JP Morgan advisory bank having twice canceled its indictment. Even the tax authorities could not carry out its adjustment because of a procedural error.

This is why justice relies on the procedures to plead guilty. In 2017, the packaging manufacturer, Gérard Autajon, 395e French fortune, pinned in the Panama Papers, thus accepted a one-year suspended sentence and 2 million fine to avoid a trial. Thomas de Ricolfis approves: “This procedure makes it possible to achieve more quickly and sometimes to impose higher penalties. ” And Christophe Bonhomme-Lhéritier, from the CFDT, adds: “This can be a way to improve collection if it is combined with an obligation to pay the tax authorities. But this should not give the impression of arrangements decided upon among oneself. “

Bercy reviews its “relationship of trust” with companies

The “right to make mistakes” law of August 10, 2018 established a new “relationship of trust” between the tax authorities and businesses. Gone is the trench warfare between tax officers, employers and their tax lawyers. Make way for transparency and constructive dialogue to avoid the hype of an a posteriori tax audit on good faith leaders.

Problem, internally, this “cultural revolution” is far from unanimous. “We are opposed to the tax administration turning into an advisory service to companies, protested Paule Guglielmi, from Solidaires, the first union among tax officials. Our vocation is to enforce the tax law. ” Worse, in an internal report of March 2018, the General Directorate of Public Finances (DGFIP) is alarmed by the ultra- “Time consuming” a first experiment of “relationship of trust” tested in 25 companies since 2013. “The virtuous dynamic did not materialize”, coldly reveals the report, before deploring the mobilization of officials to advise voluntary companies – and therefore a priori virtuous – to the detriment of the fight against fraud by rogue bosses. Faced with this observation, Bercy has better targeted its “offer” and decided to entrust it to teams other than those of the tax audit. “We now offer large SMEs legal certainty on their main“ risky ”operations, such as the purchase of an activity or a development abroad, details Edouard Marcus, head of the legal department of the DGFIP. As long as they cooperate and accept our remarks, they are protected against any unpleasant surprises. ” Regarding large companies, a procedure for validating their main upstream tax arrangements is in the pipeline, as well as a “regularization window” for those who come forward on their own in order to settle contentious cases. In trust. L.F.