Tax audit: the importance of hierarchical recourse


A company subject to an accounting audit benefits from guarantees aimed at controlling the powers of the tax administration. Among these guarantees is that of a hierarchical appeal to the auditor’s superior. The Council of State, in a judgment n ° 430593 of March 25, 2021, has just recalled its outlines.

In its judgment, the High Court recalls that the possibility for a taxpayer to contact the hierarchical superior of the auditor constitutes a substantial guarantee open to the person concerned at two distinct moments of the tax procedure.

First, during the verification itself, and before sending the correction proposal, with regard to the difficulties affecting the conduct of control operations.

Secondly, after the response made by the tax administration to the taxpayer’s observations on this proposal, with regard to the merits of the proposed rectifications.

In this case, a company was the subject of an accounting audit at the end of which the tax authorities notified it of VAT reminders, together with the increase of 40% for willful breach. By a judgment of September 29, 2016, the Administrative Court of Nice discharged her from this increase, but rejected the rest of her request. By a judgment of April 2, 2019, the Marseille Administrative Court of Appeal rejected the company’s appeal against this judgment and, upholding the cross-appeal of the tax administration, deferred the increase. for willful breach. The company appealed in cassation to the Council of State which ruled on the scope of the hierarchical appeal.

During the accounting audit initiated by an audit notice of November 23, 2011, and after an initial on-site intervention by the auditor, the company’s lawyer wrote to the supervisor on February 16, 2012. He had told him that he was defending the company and indicated that ” as part of this mission, it seems necessary to us to request an interview with yourself », By inviting the hierarchical superior to suggest a date for the meeting. The hierarchical superior did not respond to this request.

For the Administrative Court of Appeal of Marseille, this did not constitute a procedural defect insofar as an interview had taken place with the hierarchical superior on May 23, 2013, in response to the request made by the company after the response made by the administration to its observations on the proposed rectification.

The Council of State censures the judgment on this point. Indeed, the possibility, for the taxpayer, to benefit from an interview with the hierarchical superior during the control operations and before the sending of the rectification proposal. constitutes a substantial guarantee distinct from that opened after the response made by the tax administration to the taxpayer’s observations on the rectification proposal.

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