IN today’s article we want to undertake a general review of the professional responsibility that advisers, accountants, etc. have in Spain.
Contractual responsibility and liability
It can be said that, as a general rule, this type of professional responsibility will normally be of a contractual form as it is normally born from a relationship between the advisors or accountant and client, which is created by way of a service contract.
The deadline to claim for this type of professional responsibility or liability has been modified recently and reduced to five years from the previous 15 years.
As we have pointed out in previous articles, the professional responsibility of accountants, advisers, etc. is normally an obligation of means. This means that there is no obligation for a lawyer to win a case since it is quite normal in court cases for one side to win and the other to lose without any suggestion of negligence in the losing case.
Sometimes, and depending on the type of advice or service, there could be a clear obligation of result, that is, a result can be demanded and must be achieved by a professional, in those services related to presentation of tax forms, bookkeeping, accounting advice.
Professional diligence (lex artis)
These professionals are required to act in good faith, honestly and diligently. The most common cases for which advisors, accountants, etc. are claimed against are related to;
Prior to Providing the Service: There may be responsibility for lack of information over the actions to be taken, possible costs, possibility of success, possible consequences, case law or court precedents on the matter, criteria of the fiscal authority (tax advisors), etc.
During the Service: during the time where the services is provided, it is important that the advice and work be done diligently according to adjective or procedural rules, knowledge of formalities and regulations. Information must be provided to the client, access of the client to the documents, etc.
Termination of Service. After the service, the client should be informed of the possible consequences, possibility of tax revision of inspections, etc.
Examples of professional responsibility of advisers,managers, etc.
There are numerous examples in Spanish court precedents, relating to these type of claims so it can be seen in which cases, it has been understood by the judges and courts that there is a professional responsibility.
These examples of precedents include;
.- Presentation of documents, tax returns, or legal claims after the deadline.
.- Lack of information regarding the possible consequences of a fiscal revision or the effects in case of losing a judicial proceeding, etc.
.- Tax returns and other accounting errors.
If you have any doubts about this subject, contact us and we will help you.
The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.
Carlos Baos (Lawyer)
White & Baos
Tel: +34 966 426 185
E-mail: info@white-baos.com
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