B Law & Tax
17 October 2023

Tax advisor: The Supreme Court rules that the tax authorities cannot access electronic devices during an inspection except in specific cases and under strict judicial control

The Supreme Court, in a press release on its website, has announced the verdict of its resolution addressing the appeal case 4542/2021. It establishes a precedent that the conditions set forth in the doctrine promulgated by the Supreme Court [Refer to judgments dated October 10, 2019, appeal case No. 2818/2017 (NFJ075314), October 1, 2020, appeal case No. 2966/2019 (NFJ079139), and September 23, 2021, appeal case No. 2672/2020 (NCJ065711)] regarding the entry and search of constitutionally protected residences, although not suitable for authorizing the copying, sealing, capturing, possession, or use of data contained in a computer, are applicable to other administrative actions that, without constituting access to constitutionally protected residences, aim to access and process information stored in electronic devices (computers, mobile phones, tablets, memories, etc.) protected by fundamental rights to personal and familial privacy and communication secrecy.

In this judgment, the Supreme Court rules on the appeal filed against the decision of the High Court of Justice of the Region of Murcia, dated April 13, 2021, appeal case No. 36/2021 (NFJ083794), which is annulled. The Supreme Court’s chamber determined that access to the hard drive is justified due to the behavior of the appellant. The appellant, when summoned by the inspection, extensively used his computer to respond to the requests of the inspection officials. Access to the information sought by the tax administration is deemed necessary as there is no other way to obtain it. This is because it involved actions in tax havens that do not cooperate in providing the necessary information, and also due to the appellant’s refusal to allow access to the information contained therein.

In this judgment, the Supreme Court establishes the following legal precedent:

  1. The procedural rules governing judicial authorization to enter a Constitutionally protected residence for tax audit purposes are not suitable for permitting the copying, sealing, capturing, possession, or use of data on a computer when this occurs outside the residence and could impact other fundamental rights.
  2. Despite the inadequacy of these rules, it is crucial to adhere to the doctrine established by the Second Section of the Third Chamber of the Supreme Court regarding the authorization of access to Constitutionally protected residences (Article 18.2 of the Spanish Constitution). This entails applying the principles of necessity, adequacy, and proportionality when assessing the appropriateness of the authorization.
  3. These principles, based on Supreme Court jurisprudence, extend to administrative actions that do not involve access to Constitutionally protected residences but aim to manage information stored on electronic devices (such as computers, mobile phones, tablets, memories, etc.) that may be subject to fundamental rights, including personal and familial privacy, communication secrecy, and data protection, as was the case here.These demands must be evaluated fairly by the authorizing judge and should not solely rely on the narrative provided by the Administration in its request to the judicial authority, without a minimum of confirmation and review. In any case, priority is given to the protection of fundamental rights, which enjoy the highest level of constitutional protection, over the exercise of administrative authorities, especially when there is no comprehensive, direct, and detailed legal regulation.

In the case at hand, there is no evidence of the alleged lack of cooperation on the part of the individual under inspection. Additionally, there is no specification or detailed explanation of what this supposed lack of cooperation entailed, as precise information regarding the data, documents, or tax-related information requested and not promptly or completely provided is not provided. Furthermore, there is no mention of any sanctions imposed on the individual for this reason (pursuant to Article 203 of the General Tax Law).

Similarly, neither the order nor the judgment being annulled by the Supreme Court explain specifically why it was necessary to access all the files stored on the computer, including personal and email data, to obtain the relevant tax information required for the inspection. There is no argument presented that these data could not have been obtained in a less intrusive manner, such as by requesting them from the individual, and there is no evidence that such a request, if made, proved to be unsuccessful.

 

 

 

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