The Tax Agency wants to access the addresses of the taxpayers it investigates without having to notify them in advance. Access with prior notice does not seem to be very effective when there is the possibility of destroying evidence, the general director of the Tax Agency, Jesús Gascón, pointed out in Congress on Thursday. However, the Supreme Court (TS) has already annulled the possibility of access to the home outside of an inspection process. The hunch or feeling that paying below the industry average in a kind of presumption of tax fraud is not enough, he pointed out. For this reason, Gascón announced that it is necessary to work to combine these two situations and involved the Congress in the search for a solution.
What does the Supreme Court say?
In a ruling on October 7, it concluded that the Treasury inspectors cannot access a private home or in a company to see what is found, which annulled a judicial order that authorized the Tax Agency to carry out this type of action in the event that the taxpayer or company declares taxes for a lower value than its competitors. The hunch or presentiment of the Administration that, by paying a taxpayer below the average for the sector, makes him incur a kind of presumption of tax fraud, is a fact that by itself is not enough, added the Supreme.
And the Tax Agency?
As Gascón pointed out, the prior notice is not effective since it allows the person under investigation to destroy evidence of a possible crime or tax fraud. After hearing the sentence, the State Treasury Inspectors (IHE) pointed out that the demand of the Supreme Court deprives the Tax Inspectorate of the essential power to discover the most serious and unsupportive tax fraud, as it requires in any case, to warn a subject in advance that he or she is going to be inspected of such a circumstance, which renders the subsequent action in situ ineffective.
Does the intention of the Tax Agency violate the rights of citizens?
Article 18 of the Constitution states that â € œthe home is inviolableâ €, and that â € œno entry or registration may be made in it without the consent of the owner or judicial resolution, except in the case of flagrante delicto. ” In fact, the Supreme Court ruling cites this article, and states that the fact that it is an entry  «just in case» is not sufficient reason to justify a possible crime or compliance with article 31, which states that all citizens will contribute to the support of public expenditures in accordance with their economic capacity through a fair tax system.
What does the European Convention on Human Rights include?
The president of the Spanish Association of Fiscal Advisors (AEDAF), Stella Raventós, recalls that it also violates article 18 of this text which states that  «everyone has the right to respect for their private and family life, their address and correspondence », and that « there may be no interference by the public authority in the exercise of this right except insofar as this interference is provided for by law and constitutes a measure that, in a democratic society ethics, is necessary for national security, public security, the economic well-being of the country, the defense of order and the prevention of criminal offenses.
What solution do the Tax Advisors propose?
An organic law that is very well thought out by jurists that responds to Gascón’s requests, and in which it is taken into account that the home inspection should only be carried out if there really is no other means to verify and without exceeding proportionality “, which is just the opposite of what has happened up to now since” many very automatic entry authorizations were being given. ” And Raventós emphasizes that, even more than the entry into the home itself, what is basic is that the Tax Agency communicate the opening of the inspection procedure.
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