Newsflash: The partial end of the “Bercy lock” in the criminal prosecution of tax offences

16/10/2018 - Articles and publications

Par Philippe Goossens et Judith Fleuret

After almost a century of the Budget Ministry’s monopoly on tax fraud prosecution, the “Bercy lock” was partially removed by the Joint Committee.

The new text now forces the tax authority to notify the public prosecutor of the facts it examined under its audit and which led, on claims of more than 100,000 Euros for both legal and natural persons, to a penalty increase of 100% (opposing a tax audit) or 80% (abuse of rights or corrupt practices), or if the taxpayer was recurrently subject to a penalty of 40% during the course of the last 6 years (willful default).

This amount is brought down to 50,000 Euros for certain elected officials such as deputies, members of the Government, members of ministerial offices or the President’s staff.

For the other cases, the original “Bercy lock” procedure remains unchanged: complaint by the tax authorities then assent by the Commission on Tax Offences.

Additionally, as is the case with the right to make a mistake for the URSSAF, the new text provides a repentance for the taxpayer since this provision would not apply when the taxpayer would have spontaneously submitted a corrective statement.

This new penalization of tax fraud, which could lead to the referral to the public prosecutor of almost 1,000 to 2,000 cases per year, will notably apply to legal persons who will risk up to €2,500,000 in fines, or even €15,000,000 in certain cases.