“Verrou de Bercy”: a key debate on criminal prosecution for tax evaders

An information mission on the procedures for prosecuting fiscal offenses began its work in the National Assembly on January 16, 2018. Question: Is it acceptable that only the tax authorities have the power of decision? This is called the “lock of Bercy”. comment défiscaliser en immobilier
Composed of 19 deputies from all political parties, chaired by Éric Diard, MP LR, with rapporteur Emilie Cariou, MP LRM, this joint information commission on procedures for prosecuting tax offenses aims to assess the effectiveness of the “Bercy lock”, ie the monopoly of the tax administration under the supervision of the Minister of Finance to decide whether or not to initiate criminal proceedings in the area of ​​tax evasion. A key debate as a bill should be tabled in Parliament in the coming months. “The opacity of the criteria mobilized by the tax administration to determine the files it intends to transmit to the public prosecutor can only fuel the suspicions of bias,” observes Professor Martin Collet (Paris II) in a point of view in Les Echos of March 6, 2018. investissement défiscalisant
Remove Bercy’s monopoly on criminal prosecution for tax evasion
Several associations (Anticor, Oxfam France, Attac France, Sherpa, Transparency International France) were auditioned this March 6, 2018 in the National Assembly by the deputies members of the commission. They argued for the removal of the monopoly of the Ministry of Finance in criminal proceedings for tax evasion. They argue that this lock institutes “two-tier justice” and “a form of impunity for white-collar offenders,” explaining that “it is essential that the most serious cases of fraud and the dubious complex arrangements of large corporations can be tried before the courts and punished in an exemplary and transparent manner. “
The convictions appear to be too few (out of around 15,000 offenses recorded each year, 1,000 cases are referred to the courts) and would be “too often focused on medium-scale fraud”. Remember that the crime of tax evasion is sanctioned with a fine of € 3 million and eight years imprisonment.
The Parquet or Bercy?
The debate raises questions about the cumulation of both fiscal and criminal sanctions for the same facts. The Constitutional Council does not forbid it, “by pursuing common ends, both dissuasive and repressive”. Thus “the recovery of the tax and the objective of the fight against the tax fraud justify the engagement of additional procedures in the cases of the most serious fraud” (decision n ° 2016-545 QPC of June 24, 2016). This accumulation is therefore the most serious cases of fraudulent concealment of sums subject to tax (amount of fraud, nature of the actions of the person or circumstances).
Now who, from the Parquet or Bercy, is best able to appreciate the gravity and the desirability of the prosecution? That is the question. Does this lock come from reason of state? According to Professor Collet, Bercy is better “equipped” for this selection. What can be objected to that the National Financial Office is also with a certain objectivity and more! The option proposed by this academic: to impose on the administration to make the transparency on the prosecution criteria or to submit a report to the parliament.

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