The Finance Minister has considered paying informers, in tax matters. This idea inspired by the Anglo-Saxon model is not to be followed. By Bertrand Lacombe, Avocat à la Cour, Lacombe Avocats
Before declaring that he was abandoning the idea out of ‘ethical concerns’, Michel Sapin admitted a few days ago that he was ‘looking into’ the possibility of giving whistleblowers an interest in the tax adjustments that could be made as a result of their whistleblowing. The aim would be twofold: to encourage whistleblowing in the name of budgetary efficiency, and to provide a framework for a practice that has been ‘officially’ abandoned in the name of transparency.
From a semantic point of view, we need to distinguish between the whistleblower, whose courageous and disinterested action is motivated by the general interest, and the person driven by revenge, jealousy or greed. Whistleblowers, as soon as they are paid, become informers: the Petit Larousse tells us that they ‘denounce for despicable interests’. It’s easy to see why Bercy prefers to talk about ‘tax auditors’!
The fruit of a culture and a history
The French’s unease with denunciation is the result of a culture and a history. Our Latin culture does not take kindly to denunciation, which it only legitimises if it makes it possible to confound the perpetrators or prevent a crime from being committed. We are cautious about generalised, horizontal surveillance, despite attempts to moralise our society in the name of civic-mindedness. Is this because our history has taught us that the distinction between the praiseworthy (republican duty) and the servile (baser instincts) has never really been mastered by those in power? The trauma of the Vichy regime and its many denunciations of Jews and members of the Resistance irrevocably made denunciation suspect in the eyes of the French.
As early as the Roman republic…
In tax matters, denunciation was encouraged as early as the Roman Republic and then generalised under the Empire, with a quarter of the sums recovered being paid to the Imperial Treasury. It seems that success was relative, since Seneca tells us that ‘it was everywhere like a rage to accuse that exhausted Rome much more than a civil war’. However, many countries, particularly in the English-speaking world, exploit and pay unscrupulously for denunciations, including in tax matters. The perception of whistleblowing is less ethical than liberal, and it matters little that it is ‘bounty hunters’ who benefit from it. The United Kingdom, Canada and the United States go so far as to make dedicated internet portals available to potential whistleblowers. The case of Bradley Birkenfeld, who received 104 million dollars from the US tax authorities for having denounced the clients whose wealth he managed at UBS, is a real inspiration. Professionalism is never far away: the first whistleblowing schools were set up in South Korea…
An accountant paid to report clients…
The question of whether tax whistleblowers are already exploited and paid by the French tax authorities is so sensitive that it requires several answers. The Minister’s response is always formal: anonymous whistleblowers are never exploited and whistleblowers who are willing to come forward are never paid. However, the departments concerned are less categorical… Rightly so, no doubt: it would otherwise be incomprehensible that the Court of Cassation (1 ) should have had to rule on the admissibility of anonymous testimony! What is even more curious is that this same Court has ruled against the ‘business’ set up by an accountant who was paid by the Direction Nationale des Enquêtes Fiscales (National Tax Investigation Department) to inform on his clients ( 2)…
The remuneration of informers, provided for in customs matters (3), is widely used in the fight against drug trafficking. It is capped at 3,100 euros, unless the information is particularly significant. The General Tax Code ( ) is less explicit and specifies, in the area of indirect taxation, that ‘no informer may claim any remuneration whatsoever unless it is justified in writing that the information he has provided was provided before the official report was drawn up.’ It was on this textual basis that the practice of remunerating tax assessors, which has ‘officially’ been abandoned, was based.
Not a good idea to copy the Anglo-Saxon model
Should we go further? Should we generalise this practice, which is confidential in France, in order to copy the Anglo-Saxon model? In our view, this is neither necessary nor desirable. Furthermore, we feel that the Perben law, which allows anyone who provides information leading to the discovery or identification of the perpetrators of a crime or offence to be paid, is sufficient: tax fraud and tax fraud laundering are offences and informers can therefore be paid… by the Ministry of the Interior.
(1) Cass. Crim. 3 October 2007, 06-82.317.
(2) Criminal Court, 8 September 2010, 09-85.88.
(3) Article 391 of the Customs Code.
(4) Article 1825 F of the General Tax Code.
Bertrand Lacombe
Lawyer, lecturer in tax law.