Article 12 of Law 11/2021, on the prevention and fight against tax fraud, amends Law 29/1998, as well as Article 113 of the General Tax Law, on judicial authorization to enter the home of taxpayers.
When tax audits so require, inspectors have the possibility of entering the registered offices of companies, for which they must comply with a series of conditions:
- Obtain the consent of the owner of the company’s establishment, since, if the latter agrees, a court order will not be necessary.
- Obtain an entry agreement from the administrative authority determined by regulation, which is usually the delegate of the corresponding Tax Agency.
- Provide judicial authorization in the event that you wish to enter the taxpayer’s constitutionally protected home, and provided that the taxpayer opposes this, as the home is inviolable from a constitutional point of view. The request for judicial authorization must be duly justified and must state the purpose, necessity and proportionality of the entry.
- The assistance of a lawyer, tax advisor or other professional of the taxpayer’s choice must be provided, if required by the taxpayer being inspected.
These amendments are based on Supreme Court Resolution 1231/2020, which resolves the appeal lodged against a Judgment of the High Court of Justice of Andalucía rejecting the appeal against the Order of a Contentious-Administrative Court that authorized the Tax Administration to enter a company’s registered office.
This ruling complements a previous ruling, 2818/2017, in which the following is resolved:
- The authorization of entry must be connected to the existence of an inspection procedure that has already been opened and whose commencement has been notified to the inspected party, with an indication of the taxes and periods affected by the investigations.
- In addition, the court order must state the reasons and justify the necessity, suitability and proportionality of the entry measure, subjecting the information provided by the Administration and its requirements to comparison. Authorization by court order will only be admissible after an analysis of these requirements.
- The authorization to enter the home must be a strictly exceptional situation which must be expressly justified as to its necessity in the specific case, both in the application by the administration and, more importantly, in the court order. A singular and reasoned justification must be given as to the purpose of the administration’s entry.
In this sense, it would not be possible to authorize entry for prospective, statistical or undefined purposes, without identifying precisely what specific information is to be obtained.
