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

2025 Best Lawyers Awards Announced: Honoring Outstanding Legal Professionals Across the U.S.


by Jennifer Verta

Introducing the 31st edition of The Best Lawyers in America and the fifth edition of Best Lawyers: Ones to Watch in America.

Digital map of the United States illuminated by numerous bright lights

Unveiling the 2025 Best Lawyers Awards Canada: Celebrating Legal Excellence


by Jennifer Verta

Presenting the 19th edition of The Best Lawyers in Canada and the 4th edition of Best Lawyers: Ones to Watch in Canada.

Digital map of Canadathis on illuminated by numerous bright lights

Legal Distinction on Display: 15th Edition of The Best Lawyers in France™


by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

Presenting the 2025 Best Lawyers Editions in Chile, Colombia, Peru and Puerto Rico


by Jennifer Verta

Celebrating top legal professionals in South America and the Caribbean.

Flags of Puerto Rico, Chile, Colombia, and Peru, representing countries featured in the Best Lawyers

Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom


by Best Lawyers

Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.

British flag in front of country's outline

Unveiling the 2025 Best Lawyers Editions in Brazil, Mexico, Portugal and South Africa


by Jennifer Verta

Best Lawyers celebrates the finest in law, reaffirming its commitment to the global legal community.

Flags of Brazil, Mexico, Portugal and South Africa, representing Best Lawyers countries

Prop 36 California 2024: California’s Path to Stricter Sentencing and Criminal Justice Reform


by Jennifer Verta

Explore how Prop 36 could shape California's sentencing laws and justice reform.

Illustrated Hands Breaking Chains Against a Bright Red Background

Announcing the 16th Edition of the Best Lawyers in Germany Rankings


by Best Lawyers

Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.

German flag in front of country's outline

Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™


by Best Lawyers

Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.

Italian flag in front of country's outline

Tampa Appeals Court ‘Sends Clear Message,” Ensuring School Tax Referendum Stays on Ballot


by Gregory Sirico

Hillsborough County's tax referendum is back on the 2024 ballot, promising $177 million for schools and empowering residents to decide the future of education.

Graduation cap in air surrounded by pencils and money

Find the Best Lawyers for Your Needs


by Jennifer Verta

Discover how Best Lawyers simplifies the attorney search process.

A focused woman with dark hair wearing a green top and beige blazer, working on a tablet in a dimly

Key Developments and Trends in U.S. Commercial Litigation


by Justin Smulison

Whether it's multibillion-dollar water cleanliness verdicts or college athletes vying for the right to compensation, the state of litigation remains strong.

Basketball sits in front of stacks of money

Woman on a Mission


by Rebecca Blackwell

Baker Botts partner and intellectual property chair Christa Brown-Sanford discusses how she juggles work, personal life, being a mentor and leadership duties.

Woman in green dress crossing her arms and posing for headshot

Best Lawyers Celebrates Women in the Law: Ninth Edition


by Alliccia Odeyemi

Released in both print and digital form, Best Lawyers Ninth Edition of Women in the Law features stories of inspiring leadership and timely legal issues.

Lawyer in green dress stands with hands on table and cityscape in background

The Human Cost


by Justin Smulison

2 new EU laws aim to reshape global business by enforcing ethical supply chains, focusing on human rights and sustainability

Worker wearing hat stands in field carrying equipemtn

Beyond the Billables


by Michele M. Jochner

In a recently conducted, comprehensive study, data reveals a plethora of hidden realities that parents working full-time in the legal industry face every day.

Women in business attire pushing stroller takes a phone call