Insight

The “Messi Doctrine”: Tax Advisors Could Be Prosecuted for Their Tax Advice and Meet the Same Fate Than Their Clients

Could lawyers be held responsible for their client's fraudulent activity?

Tax Law's Messi Doctrine
Mariano Roca López

Mariano Roca López

May 3, 2019 09:32 AM

The progressive increase in the aggressiveness of the Spanish tax authorities in interpreting and applying tax regulations has not only posed a problem for taxpayers, but also for tax advisors, each time their clients are investigated.

The matter began to acquire special relevance with the so-called “Messi case”. The internationally renowned football player, Lionel Messi, was tried and convicted in 2017 by the Spanish Supreme Court for defrauding the Spanish treasury 4.1 million euros through a structure of companies, some of them located in tax havens.

The fact is that the footballer's defense argued that the delegation of functions in the contracted tax experts should exempt him from any criminal liability. They argued that, since he was football player and was not qualified to handle the tax matters, they delegated those functions to qualified tax advisors. Consequently, they argued that, precisely because he was not qualified to handle the tax matters and therefore delegated the task, he was not qualified to verify if their advice was correct or not.

However, the Spanish Supreme Court did not accept this thesis of exoneration and reaffirmed that he was fully aware that his actions and signing of documents led to the result of tax fraud. The Spanish Supreme Court also made the distinction between the concepts of "delegation" and "commission". For the court, there can be no delegation in terms of taxes, given the fact that tax obligations are legally non-delegable and non-transferable.

It is clear from the above that the criterion set out by the court is that, the fact that any negative tax result for a taxpayer may derive from the tax advisors’ commission does not exonerate the taxpayer from any potential criminal offense. Notwithstanding the aforementioned, the court also took the opportunity to remind tax advisors that, without prejudice of the responsibility of taxpayers as the perpetrators of the offenses, tax advisors could also be considered accomplices or inciters of the offense.

[RELATED: China's nomination deadline is Friday, May 3]

We could now talk about the disproportionate reaction of institutions (both, tax authorities and courts); particularly in view of the fact that usually, the taxpayer’s strategy is not contrary to the regulations, but the most tax-efficient option according to the regulations in force. And we could say that, if those institutions do not feel comfortable with the results in terms of tax collection, maybe the fairest and most honest way to change the situation would be to change to regulations to forbid whatever conduct they consider inappropriate, instead of attributing a criminal offense to someone who chose the most efficient scheme allowed by the regulations in force. But we are not here to judge, only to inform.

In any case, given all the above, you should take into consideration the following advice: You should always request from your tax advisor to properly document his advice and recommendations and duly warn you of the risks that may be incurred. Otherwise, you might be assuming a considerable risk.

------------

Mariano Roca is a tax and private client practitioner focused on corporate and individuals advice (specialized in tax, wealth and inheritance advice for HNWI). He began his professional career in Cuatrecasas Gonçalves Pereira from 1997 until 2012. In 2012, he joined KPMG from 2012 until 2015 where co-led the family business and private client practice in the Barcelona, Girona, Balearic Islands, and Andorra offices. On January 2016 he joined 453 Law, leading as a partner the firm’s tax department. Mariano has been listed in Best Lawyers since 2013 and won the “Lawyer of the Year” award in 2014 and 2015. He has been once again recognized with the “Lawyer of the Year” award in tax practice for 2018.

Related Articles

Baraona Fischer & Cia on the Changes Coming to Tax Law in Chile


by Best Lawyers

Juan Manuel Baraona of the 2019 "Law Firm of the Year" award-winner for Tax Law in Chile discusses forthcoming regulations, career highlights, and his secrets to success in an interview with Best Lawyers CEO Phillip Greer.

Baraona Fischer & Cia LFOTY

Current Status of Image Rights Structures in Spain


by Eduardo Montejo

Image Rights in Spain

Checks and Balances


by Michael Sullivan

Ensuring probity and above-board behaviour in both the public and private sector is always important—and that importance can be particularly stark during a major crisis like the pandemic. An overview of a year’s worth of commissions and inquiries.

Australian Commission Governance Structure

Summer Voting Season Is Here!


by Best Lawyers

Summer 2021 voting is open to all lawyers listed in Best Lawyers in Chile, Colombia, Peru, Brazil, Mexico, Portugal, South Africa and Spain.

How To Vote On Your Best Lawyers Ballot

Everything to Know About Our Spanish Awards


by Best Lawyers

Learn more about this year’s selection process for The Best Lawyers in Spain.

	Best Lawyers in Spain

Announcing the 2021 Best Lawyers in Spain


by Best Lawyers

Featuring the nation's top 2 percent of practicing lawyers.

2021 Best Lawyers in Spain

Paying the Price in P.R.


by Best Lawyers

Isis Carballo-Irigoyen discusses discuss intergovernmental relations, opportunity zones, and why a move to Puerto Rico to ease your tax burden likely won’t be as simple as you might think.

An Interview With McConnell Valdés

What a Time to be in Capital Markets


by Best Lawyers

Fernando Vives and Gonzalo García-Fuertes discuss the future of capital markets in the face of a pandemic.

An Interview With Garrigues

Why Stablecoins Will Be Regulated


by Mladen Milovic

In Order To See Adoption, Stablecoins Must Clear These Hurdles

Why Stablecoins Will Be Regulated

How Spain's Garrigues Trains a Millenial Workforce


by Best Lawyers

In an interview with Best Lawyers, Adriano Gómez of "Law Firm of the Year" Garrigues in Spain offers a look at his career success, labor and employment law, and embracing a millennial workforce.

Garrigues "Law Firm of the Year" Interview

ECIJA on Revolutions in Spanish Information Technology Law


by Best Lawyers

Alejandro Touriño looks at the policy changes impacting information technology law in Spain in this "Law Firm of the Year" interview with Phillip Greer.

ECIJA Information Technology Law Interview

Lecher Pays


by Ann E. Evanko and Katherine L. Wood

Can social change be sped up via legislation? A key provision of the recent tax-law overhaul, clearly written with #MeToo in mind, suggests it can.

Social Change Amid #MeToo

Opening Pandora's Box in Portuguese Tax Law


by Best Lawyers

Diogo Ortigão Ramos discusses Cuatrecasas' 2019 "Law Firm of the Year" award for tax law in Portugal.

Cuatrecasas Law Firm of the Year Interview

How Preventative Counsel Is Changing Criminal Defense


by Best Lawyers

Ayala Gómez discusses Oliva-Ayala's 2019 "Law Firm of the Year" award for criminal defense law in Spain.

Oliva-Ayala Spanish Interview

Why Law Firms are Embracing Sustainable Development Goals


by Best Lawyers

Uria Menendez Abogados is committing itself to Spain's progressive environmental policies.

Uria Menendez's Sustainability Goal

Monica Biringer and Firoz Ahmed on Canada's Changing Tax Practice


by Best Lawyers

The attorneys from Canada's 2019 "Law Firm of the Year" winning Osler, Hoskin & Harcourt look at their achievements over the past year.

Osler, Hoskin & Harcourt Interview

Trending Articles

Johnny Depp and Amber Heard: The Best Lawyers Honorees Behind the Litigation


by Gregory Sirico

Best Lawyers takes a look at the recognized legal talent representing Johnny Depp and Amber Heard in their ongoing defamation trial.

Lawyers for Johnny Depp and Amber Heard

The Real Camille: An Interview with Johnny Depp’s Lawyer Camille Vasquez


by Rebecca Blackwell

Camille Vasquez, a young lawyer at Brown Rudnick, sat down with Best Lawyers CEO Phillip Greer to talk about her distinguished career, recently being named partner and what comes next for her.

Camille Vasquez in office

Announcing The Best Lawyers in The United Kingdom™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from the United Kingdom.

The Best Lawyers in The United Kingdom 2023

Announcing The Best Lawyers in France™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from France.

Blue, white and red strips

Announcing The Best Lawyers in Germany™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from Germany.

Black, red and yellow stripes

Education by Trial: Cultivating Legal Expertise in the Courtroom


by Margo Pierce

The intricacies of complex lawsuits require extensive knowledge of the legal precedent. But they also demand a high level of skill in every discipline needed to succeed at trial, such as analyzing technical reports and deposing expert witnesses.

Cultivating Legal Expertise in the Courtroom

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Announcing The Best Lawyers in Belgium™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from Belgium.

Black, yellow and red stripes

Announcing the 2022 Best Lawyers™ in France


by Best Lawyers

The results include an elite field of top lawyers and firms, including our inaugural Best Lawyers: Ones to Watch recipients.

Announcing the 2022 Best Lawyers™ in France

We Are Women, We Are Fearless


by Deborah S. Chang and Justin Smulison

Athea Trial Lawyers is a female owned and operated law firm specializing in civil litigation, catastrophic energy, wrongful death and product liability.

Athea Trial Law Female Leadership and Success

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

What If Johnny Depp and Amber Heard Had a Premarital Agreement?


by John M. Goralka

Oh, the gritty details we’re learning from the latest court battle between Johnny Depp and Amber Heard. This unfortunate airing of dirty laundry may have been avoided with a prenup. Should you think about getting one yourself?

What If Johnny Depp & Amber Heard Had Prenup?

Announcing the 2022 Best Lawyers™ in Germany


by Best Lawyers

The results include an elite field of top lawyers and firms, including our inaugural Best Lawyers: Ones to Watch recipients.

Announcing the 2022 Best Lawyers™ in Germany

U.K. Introduces Revisions to Right-to-Work Scheme and Immigration Rules


by Gregory Sirico

Right-to-Work Scheme and Immigration Rules in

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Destiny Fulfilled


by Sara Collin

Was Angela Reddock-Wright destined to become a lawyer? It sure seems that way. Yet her path was circuitous. This accomplished employment attorney, turned mediator, arbitrator and ADR specialist nonpareil discusses her career, the role of attorneys in society, the new world of post-pandemic work and why new Supreme Court Justice Ketanji Brown Jackson represents the future.

Interview with Lawyer Angela Reddock-Wright