OECD RECOMMENDS INCREASED PRESSURE ON LAWYERS AND TAX ADVISORS THROUGH CRIMINAL LAW MEANS


The OECD Council reaffirmed through its recommendation announced last week (06/17/2022) regarding the Ten Global Principles for Fighting Tax Crime that tax professionals such as lawyers and legal advisors, accountants, financial advisors, banks and financial institutions, company formation agents, registered agents, notaries, business trustees who enable tax crimes and other financial crimes, are also subject to criminal liability (https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0469). The fact that the recommendation was adopted at the annual OECD Council meeting at the Ministerial level on 10th June 2022 increases its importance.

“Fighting Tax Crime – Ten Global Principles”, approved by the OECD Committee on Fiscal Affairs on 10th October 2017 and revised on 4th June 2021, include: 1. ensuring tax offenses are criminalized, 2. devising an effective strategy for addressing tax crimes, 3. having adequate investigative powers, 4. having effective powers to freeze, seize and confiscate assets, 5. putting in place an organizational structure with defined responsibilities, 6. providing adequate resources for tax crime investigation, 7. making tax crimes a predicate offense for money laundering, 8. having an effective framework for domestic inter-agency co-operation, 9. ensuring international co-operation mechanisms are available, and 10. protecting suspects’ rights. In its June 2022 Recommendation, the OECD Council places particular emphasis on taking greater consideration of technological developments, effective domestic inter-agency cooperation, and strengthened intergovernmental cooperation in the fight against financial crimes.

Actually, the revised text of the 2021 Ten Global Principles described dealing with professionals who facilitate tax and other financial crimes as a new challenge, and under Principle 1 (Criminalization of Tax Offenses), stated that jurisdictions should have a penalty regime in place to tackle the some professionals who use their skills and knowledge to facilitate the commission of tax and other financial crimes by their clients. The rationale given was that these professionals play an integral role in making it easier for taxpayers to defraud the government and evade tax obligations by, among other things, developing (enablers) opaque structures and systems to conceal the true identity of their clients/clients who are behind the illegal activities. It was also pointed out (in the revised text of 2021) that in many jurisdictions these persons can be criminally charged as accessories, in some jurisdictions the person can be liable for an increased penalty, such as where they are a tax professional and their facilitation of the offence is considered to be an aggravating factor, and in a few jurisdictions there are significant civil penalties for professional enablers or promoters (see also OECD (2021), Ending the Shell Game: Cracking down on the Professionals who enable Tax and White Collar Crimes, OECD, Paris).

However, the fact that the OECD Council has revisited under "Recommendation" a topic already addressed in the updated Principles in 2021 suggests that countries will increasingly scrutinize professional enablers providing tax services in the coming period. Apparently, it is no longer considered sufficient that aiding and abetting the commission of tax evasion or other white-collar crime is regarded and punished as "complicity" in many jurisdictions. It is reasonable to assume that states, whose budgets have already been strained by the effects of first the pandemic and then the war between Russia and Ukraine, will become even more active in the area of criminal tax law to eliminate all kinds of threats that reduce their tax revenues. There is no detailed information in the OECD Council Recommendation on what to mean by "ensuring that professionals who enable tax crimes are also subject to criminal liability". However, the introduction of the "delicta propria" (special offense) for professional enablers, the criminalization of some services regarding designs that have been and still are in the gray area, or the restriction of attorney-client privilege, for example, are among the possibilities that can be considered. In any case, professional enablers can expect more pressure through criminal law means soon.