The French High Court (Conseil d'Etat, December 6, 1995) has considered that the fact that some of the elements/documents seized at the time of an audit as regards the economic legislation and transmitted to the Tax Authorities by the Legal Authorities be later on declared null and void by the penal judge has no influence on the regularity of the practice of the Administration's right of communication. This fact does not deprive the Administration either of its rights to take advantage of these documents to draw up the taxations.
This decision of the French High Court, pronounced contrary to the Government Commissioner's conclusions gives the advantage to a strict application of the principle of independence of the tax and penal procedures.
The present solution seems to condemn the case law resulting from the decrees of the Administrative Court of Appeal of Paris dated May 19, 1994, no 92-550 and the Administrative Court of Appeal of Lyon dated July 5, 1994, no 92-392 and 92-619.
Moreover, it can be wondered about the future of case laws resulting from decrees, CE June 21, 1989 and June 18, 1990, according to which the irregularity of the conditions in which the information used to draw up taxations have been collected is likely to affect the validity of the latter taxations when this irregularity does not give to the information collected a convincing value. Indeed, should it be considered that, if the cancellation by the penal judge of elements/documents regularly transmitted to the Tax Authorities does not prevent the latter Authorities from the right to take advantage of these documents to base its taxations, it would however not be the same if the irregularity noticed by the penal judge triggered that the documents involved would no longer have any convincing quality. It will be interesting to wait for the next decisions concerning this issue in order to know about the position of the case law in this respect.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be brought about your specific circumstances.
For additional information contact Claire Acard on 33/(1)/55 61 10 10, Lionel Benant on 33/18.104.22.168 or Joel Fischer on 33/22.214.171.124 or enter text search: 'ARCHIBALD ANDERSEN' and 'Business Monitor'. The members of ARCHIBALD ANDERSEN Association d'Avocats (S.G. Archibald and Arthur Andersen International) are registered with the Hauts-de-Seine Bar and the Lyon Bar.
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