“Optimization remains a right in our free society. “A week after the revelations of the Pandora Papers, it was necessary to dare. However, this is the position developed by Marc Bornhauser, a lawyer specializing in tax law, during a hearing organized by the Senate Finance Committee in reaction to the leak of unpublished documents, which revealed the storage of 11,300 billion dollars in offshore companies. The vagueness sometimes maintained between the different types of “financial intermediaries”, which allows certain lawyers to retract their legal obligations, has not failed to question the practices of certain firms participating in setting up the incriminated arrangements. in the revelations of the Pandora Papers. Alone against all, the tax lawyer defended the probity of his profession and the professional secrecy attached to it, in the name of a right to privacy threatened by “the growing strengthening of the tax administration. »

To understand everything about Pandora Papers, find our article on the revelations of the international consortium of investigative journalists

Fight against tax evasion: “Perhaps we are reaching the limit of strengthening the powers of the tax administration”

“You can’t escape without a little help,” slips Éric Bocquet, Communist senator specializing in the fight against tax evasion and author of Billions on the run, alluding to the role of lawyers in the “chain of custody” of tax evasion. Unsurprisingly, Marc Bornhauser did not seem to share this opinion: “We have the ability to guide our clients to the right side of the line between tax evasion and tax optimization. The tax lawyer would like to point out that “all these schemes are not necessarily fraudulent and optimization remains a right in our free society. Contrary to the prevailing climate, after revelations that betray a “systemic” drift, in the words of Éric Bocquet, the lawyer specializing in tax law defends the tax optimization achieved thanks to the talents of his tax specialist colleagues: “The optimization, whether aggressive or not, it is either on the right side of the law or the wrong side. There are objective markers which make it possible to classify it. »

The position of the tax lawyer did not fail to make the senators of the Finance Committee react. Sophie Taillé-Polian, an environmental senator, for example drew a parallel with the “optimisation”, just as legal, but much more easily denounced, of unemployment benefits by recipients: “To justify the reform of unemployment insurance , we said that it was outrageous optimization and there it is normal. There is a double weight, two measures. “But according to Marc Bornhauser, this separation is clear and objective since “the case law exists” and the mechanisms for combating tax evasion already in place would be largely sufficient: “The texts exist and it will be difficult to go further . Perhaps we are reaching the limit of strengthening the powers of the tax administration. “When we hear Frédéric Ianucci, head of the legal security and tax control department at Bercy, explain that the administration only has information published in the press and that it must rely on “international administrative assistance” , it is difficult to buy into this narrative of an all-powerful and inquisitive tax administration.

“Absolute transparency and madness”

However, Marc Bornhauser does not budge, the desire for tax interference revived by the revelations of the Pandora Papers threatens the legal profession, and consequently justice and the fundamental freedoms guaranteed by the Constitution. Indeed, “lawyers are not financial intermediaries, we have very strict ethics” he defends himself. Fine, but why do reputable firms like Baker McKenzie find themselves cited in Pandora Papers documents? An unjustified cabal for the tax lawyer: “The McKenzie firm has been delivered to popular vengeance, I challenge to prove that they have acted badly. Knowing the reputation and quality of the professionals of this firm in France, I would be extremely surprised. “Some financial intermediaries would indeed market “fraudulent schemes”, but “there would be no French lawyer among them. ” Marc Bornhauser feels that his argument is not unanimous in the room, but is combative: “By targeting lawyers, as a number of senators and NGOs around this table are doing, you miss the target. »

Worse still, “attacking us is also attacking justice and consent to taxation”, just that. In fact, the tax lawyer believes that these revelations on tax evasion are dangerous because they intend to “impose a dictatorship of transparency. He appeals to the “constitutional right to respect for private life” and, as a good lawyer, even pleads for “a right to secrecy”: “Secrecy is not shameful, people have legitimate reasons for their lives private is not displayed in the public square. The average citizen has the right to respect for their privacy and their investments. “Positions that make people cringe beyond the benches of the senatorial left. Even on the side of Bercy, represented by Frédéric Ianucci, we are a little annoyed by these remarks: “It is not the lawyers who are targeted, it is the lawyers who are targeting the anti-fraud legislation and in a quite violent in the name of great principles which, in tax matters, seems to me to be out of step with what constitutes the essence of the profession of lawyer. » “It’s a long job that begins” had warned head of the service of legal security and tax control at the opening of the hearing. Faced with the reaction of Marc Bornhauser, difficult not to agree.