· Información legal
Civil Liability of Tax Advisers: Limits, Recoverable Damages and Case Law Criteria
The civil liability of tax advisers has become one of the most contentious issues in the field of professional liability in Spain. The increase in tax inspections, combined with ever-growing regulatory complexity, has led to a significant rise in claims against tax advisers, economists and accounting managers.
However, not every tax regularisation by the Tax Agency automatically implies that a tax adviser has been professionally negligent. Case law is increasingly defining, with ever greater precision, the conditions required to establish a tax adviser’s liability and, in particular, which items can genuinely be considered recoverable losses.
When is a tax adviser civilly liable?
The civil liability of a tax adviser arises when the classic elements of contractual liability under Article 1101 of the Spanish Civil Code are met: (i) the existence of a professional relationship; (ii) negligent breach of the obligations undertaken; (iii) the occurrence of actual loss; and (iv) a causal link between the tax adviser’s conduct and the damage suffered by the taxpayer.
The fundamental question lies in determining what truly constitutes a «recoverable loss» in the tax context.
This is where case law draws a clear distinction between:
- The taxpayer’s own tax obligations, which are not recoverable.
- Financial consequences arising from the adviser’s negligent conduct, which may be.
The tax adviser’s duty of care
Liability does not arise from failing to get everything right, but from falling below the required technical standard. A tax adviser is subject to a duty of professional care in accordance with the lex artis of their activity (Articles 1101 and 1104 of the Spanish Civil Code).
What is therefore assessed is whether the professional made avoidable errors or omissions: advice manifestly contrary to the rules, failure to warn of an obvious tax risk, or the submission of returns without the necessary documentary support. It is not sufficient that the Tax Agency carries out a regularisation; it must be established that the adviser did not act as a diligent professional would have done.
The tax liability itself does not constitute recoverable loss
One of the most firmly established criteria of our Provincial Courts of Appeal is that the tax liability regularised by the Tax Agency cannot, in itself, be considered a recoverable loss.
The reason is straightforward: the tax would have had to be paid in any event, even had the adviser acted correctly. In other words, the tax debt arises directly from the law («ex lege«), not from the professional’s conduct.
This has been reiterated by recent case law, most notably the judgment of the Provincial Court of Appeal of Barcelona, Section 4, of 17 February 2025 (Appeal No. 526/2023), which recalls that the taxpayer cannot pass on to the adviser the amount of a tax obligation that was legally theirs to discharge.
This criterion is particularly relevant in proceedings where the Tax Agency regularises improper VAT deductions, unjustified expenses or tax structures lacking sufficient documentary support.
From a technical and legal standpoint, the reasoning is clear:
- If the taxpayer was always liable to pay the tax, there is no patrimonial loss caused by the adviser.
- The regularisation merely restores the correct tax position.
- A pre-existing legal obligation must not be confused with recoverable loss.
What about late-payment interest?
Another classic area of debate concerns late-payment interest charged by the Tax Agency to the taxpayer following a regularisation.
Some judgments have taken the view that interest compensates the taxpayer for the temporary use of money during the period in which the tax was not correctly paid, and therefore the tax adviser is not automatically ordered to pay such interest even where the existence of civil liability is indeed established.
This was the position taken, among others, by the judgment of the Provincial Court of Appeal of Lleida of 17 September 2012 (Appeal No. 14/2012), which held that late-payment interest serves a strictly compensatory function from the perspective of the Public Treasury.
Accordingly:
- The taxpayer had the use of funds for years that ought to have been paid at the time.
- The interest represents the financial cost of that delay.
- It does not necessarily constitute a loss attributable to the adviser.
Nevertheless, some decisions do allow claims for interest where the professional’s negligent conduct is particularly serious and the taxpayer demonstrates legitimate and reasonable reliance on the adviser’s technical judgement.
Tax penalties: the real focus of the dispute
The civil liability of a tax adviser tends to centre on tax penalties.
Unlike the tax liability itself or interest, a penalty can constitute an autonomous head of loss if it flows directly from the professional’s negligent conduct.
That said, case law requires a very rigorous analysis of the causal link.
For the tax adviser to be held liable, the client must establish that they actually followed the adviser’s instructions, that they provided accurate and complete information, and that the professional’s conduct was objectively negligent. Furthermore, the penalty must flow directly from that technical error.
In numerous proceedings, courts reject claims where the client was actively involved in creating the tax risk, particularly in cases involving personal expenses recorded as deductible or VAT deductions without documentary support.
What can be claimed from a tax adviser? Summary
| Item | Recoverable? | Reason |
|---|---|---|
| Tax liability | No | The tax was payable in any event (ex lege) |
| Late-payment interest | Generally, no | Compensates for the use of funds not paid on time |
| Tax penalty | Yes, if there is a causal link | It is an autonomous loss arising from the adviser’s negligence |
The tax adviser’s professional liability insurance
A large proportion of tax advisers hold professional liability insurance covering losses arising from their activities. In practice, it is usually the insurer that meets the compensation where the adviser’s liability is established.
It is therefore advisable to identify the existence and scope of that policy from the outset of any dispute, whether you are a taxpayer who has suffered loss or the adviser against whom the claim is being brought.
We have a team of specialists in tax-related civil liability, with lawyers who hold a Master’s degree in Taxation and years of experience in this type of litigation. Whether you are a taxpayer affected by your tax adviser’s negligence, or an adviser facing a civil liability claim from a client, we can help. Get in touch.
Frequently asked questions about the civil liability of tax advisers
What liability does a tax adviser have?
A contractual civil liability (Article 1101 of the Spanish Civil Code) for losses caused by their negligent conduct, without prejudice to any criminal liability that may arise in the most serious cases.
Does the adviser pay the tax liability demanded by the Tax Agency?
No. The tax liability is the taxpayer’s own obligation, which would have been payable in any event. As a general rule, it does not constitute recoverable loss attributable to the adviser.
When does a claim against a tax adviser become time-barred?
A contractual liability claim becomes time-barred after five years (Article 1964.2 of the Spanish Civil Code), generally from the date on which the loss could have been known.