The Supreme Court’s judgment of 1 October 2020 prevents the Treasury from entering and registering an address or companies only on suspicion. This voids the tax office’s authorisation to enter the domicile of an undertaking declaring taxes lower than the rest of its competitors.
From now on the entry of Treasury inspectors into homes and/or companieswill be illegal if there is no inspector procedure, and they will no longer be able to access it simply to see what they are, as they have been doing so far.
A measure that guarantees the inviolability of the domicile in the event of the possible registration of inspectors of the Tax Agency. The Treasury has been increasing inspections on those companies whose tax figures were below those of their competitors, and which on the other hand is very well received by tax advisors and taxpayers,highlighting it as a great contribution of the Supreme to legal certainty.
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New requirements to enter homes and companies in the face of a Treasury inspection
In addition to approving the inviolability of the domicile by Treasury technicians without an inspector procedure, the supreme court’s judgment lays down the requirements for entry and registration at the homes and companies of the inspectors.
With the judgment of 1 October 2020, The Treasury may not enter homes or companies for prospective, statistical or indefinite purposes. In short, you won’t be able to access to see what’s simply on suspicion of fraud.
From now on, it will not be accessible without causes that motivate, justify and prove the need, adequacy and proportionality of entry to carry out an inspection. All information collected by the Administration will be analyzed and tested objectively, without automatic, unfounded or un critical acceptances of the data provided.
Also, if the access authorisation is approved, it must be transferred in advance to the subject whose domicile you wish to access.
The access authorisation must be connected to an already open inspector procedure,which has been notified to the inspected party, also indicating the taxes and periods affecting the investigation.
Without the existence of these proceedings and the prior application, the court may not rule on entry into an address or undertaking for lack of competence,which shall be constitutionally protected.
The Supreme Court’s ruling also affects the possibility of obtaining unprecedented entry authorization (without listening to the other party), which would entail the entry of the inspection without prior notice to the inspected person.
This situation of exceptionality it must be expressly substantiatedon its need in a particular case, both with regard to the administration’s request and, with greater obligation, in the judicial order, without presuming in the mere verification an unconditioned or natural right to enter the domicile.
In this way, entry and registration at homes and companies for prospective purposes by the Treasury, withoutthe authorization of the judge or inspector procedure, and without prior notice to the inspected, will be a breach of the fundamental right to inviolability of domicile,as set out in Article 18.2 of the Spanish Constitution.
In short, the judgment of the Supreme Court cancels the entry and registration in homes and companies for inspections of the Treasury for prospective purposes and without justified data, simply out of suspicion and to see what is found.
If you have any questions about this or want more information about this matter, AYCE Laborytax tax advisors are at your disposal to assist you. They will inform and advise you on everything related to the inviolability of homes and companies by Hacienda.