Osnato: Immediate correction on professional liability

A dedicated decree law or a lightning amendment inserted in another legislative vehicle. In the aftermath of the Supreme Cassation Order 5638 that challenged the accountant's complicity in the client company's tax violations, the president of the House Finance Committee, Marco Osnato, announces a rapid reviverence via primary regulatory source. "We take note of Thursday's order, which is a challenging postulate with respect to our jurisprudence, capable of creating more than an operational uncertainty for the many stakeholders: this is why it is appropriate for the institutions to deal with it as soon as possible, involving the trade associations," Osnato says, confirming to the Sole 24 Ore the urgency of the intervention - which could also be realised in a dedicated dl - and adding that in concert with the Ministry of Economy and Finance he will stimulate "a debate at the Commission I chair, with the hope that the entire Parliament will show sensitivity to the issue".

Prior to Osnato's announcement, the president of the accountants, Elbano de Nuccio, had frontally attacked the new orientation of the Supreme Court, emphasising that 'the practical effect will be devastating even for the tax system itself. Accountants, in order to protect themselves, will be forced to refuse mere telematic transmission assignments when they are also keepers of the accounts; to expect to fully re-examine each declaration before transmission, with an increase in costs and time; finally, to abandon the tax advice sector for less risky activities, with a correlated increase in 'do-it-yourself' evasion and tax litigation'.

Reactions of strong perplexity over the interpretative extension of Decree Law 269/2003 (Tremonti Decree, induced heterogenesis of the ends, one might say) were also raised by the academic and professional world. The risk of "exorbitant extensions" was mentioned in the Sole 24 Ore by Giuseppe Marino, according to whom "in the recent case of the Agnelli inheritance, the Supreme Court of Cassation has in fact unhinged the professional secret on consultancy, asserting a real duty of vigilance and control". In any case, 'the professional must make the client's culture grow, not the other way around, valuing this role also in terms of remuneration'.

According to Marco Allena, 'the impression is that the Supreme Court took into account elements that did not emerge from the motivation. Professionals must undoubtedly have their own responsibilities, but keep in mind that the budgetary choices are the entrepreneur's: how can you then impose sanctions on the professional when the discretionary choices were not shared by him?".

For Gaetano Ragucci, 'the accountant's concurrence is given by the execution of the material conduct punished, i.e. by having transmitted the declaration, and by the guilt that is presumed until proven otherwise. And which must therefore be excluded if it turns out that he has diligently checked its contents'. "On the other hand, the reactions are interesting, because they come from a professional category that collaborates with the Agencies' information system, making possible a massive telematic transmission of declarations, which many taxpayers do not have the means to carry out. And who is therefore right to expect the same treatment as a messenger (nuncius), because, from what world is the world, 'ambasciator non porta pena'. As a scholar and practitioner, I wonder whether a discipline modelled on the liability for aiding and abetting an offence is the best solution to ensure the right graduation of liability of those who make possible an act of tax compliance without deriving any advantage from the eventual wrongdoing, such as the accountant'.