Respect and protection of the right to privacy, legal sanctions for lawyers in contexts of tax elusions and the right of defence: An inevitable tension

Abstract

The objective of this work is to determine whether imposing a sanction on the tax advisor, who designed or planned acts or contracts for his client, which have been judicially determined as elusive (due to abuse of legal forms or simulation), could violate the fundamental right (also recognized as the taxpayer’s right) to respect (and protection) of private life and the right to defence. This is because it could affect the professional secrecy of the consulting lawyer. Therefore, the method employed consists of doctrinally examining the sanction applicable to the advisor and reviewing the state of constitutional jurisprudence that has delimited the scope of protection of the guarantee of article 19 No. 4 of the Chilean Constitution in order to specify the contours of the taxpayer’s right established in article 8 bis of the Chilean Tax Code. The main result is that the imposition of sanctions, in specific cases, may imply an infringement of the mentioned rights.