The Director General of the Tax Agency, Jesús Gascón, stated in the Congress Committee on Budgets last Thursday 5/11/2020 that access to homes with prior notice to carry out checks “does not seem to be very effective when there is the possibility of destroying evidence”, after the Supreme Court ruled that the Treasury cannot access a home or business on a “hunch” or “to see what is found”.
And of course the debate has been opened. And at AVERUM Abogados, we are following it.
There are already quite a few comments and press articles on this subject. We like the one published by Ana María Juan Lozano in El Derecho. com today 10/11/2020 “The Debate about the domiciliary entrance and the inspection proceedings. A personal reading of the SC sentences of 10/10/2019 and o1/10/2020; not so much conflict and not so much urgency”.
- On the importance of Tax Collection
Entrances to someone’s private home should only be possible with express judicial authorisation for very justified reasons of safeguarding rights of such a fundamental value as the one being violated by the search. For example, to prevent hundreds of people from being harmed by drug trafficking; or to prevent a terrorist attack or human trafficking.
“For us in the 21st century, the duty to contribute to the burdens of the State does not justify a full violation of the fundamental right of inviolability of the home by the tax collectors”.
There must be an appropriate balance between duties and rights.
For us in the 21st century, the duty to contribute to the burdens of the State does not in itself justify a full violation of the fundamental right of inviolability of the home by the tax collectors.
This interference in the person’s very private sphere should not take place without prior authorization from an independent judicial authority and only in cases that are either flagrant or have serious repercussions or damage to third parties.
Furthermore, it would always be subject to State responsibility in the event of the inadequacy of the measure taken for the purposes pursued or in the event that it proved to be totally unnecessary or useful.
That is, negligence or malice (prevarication).
2. The legislature Legislative power does not only have legal limits “a posteriori.”
Traditionally in our free democracies they are based on the “Social Contract” by which we free citizens grant the Administration a power that emanates from our own existence as civilized human beings living in society.
That’s where all his power comes from. From us.
The control of that enormous power to govern us is basically achieved:
-Avoiding the concentration of everything in one (hence the well-known division of powers)
-Regulating the Administration in general hierarchically and organizationally
– Implementing a NORMATIVE SYSTEM OF LEGALITY
-Establishing a system of review of any administrative acts that occur throughout the journey of this hierarchy
-Establishing a responsibility of the State – at national and international level – for acts that are not legitimate or simply not in accordance with the law previously approved.
-Allowing criticism and freedom of information and expression from the true owner of the State: the citizen.
In Spain and in tax matters, the prerogatives enjoyed by the Tax Administration are already very striking. It acts with considerable impunity – and with all speed – when it comes to collecting under this principle of “solve et repeat” while at the same time it is enormously slow when it has to question its own decisions or acts, to be more precise. Or with the right, for example for corporate income tax, to make withholdings on future expected income.
A clear example is that in a request made by the AEAT the term to answer is TEN days. The enforcement and seizure procedures with the new digitalization and data crossing are very effective and in a matter of weeks one finds all of one’s assets seized, with the right to claim.
And our experience proves that the delays in the resolution of these claims before the Central Economic-Administrative Court – internal organ of the AEAT – exceed two years by far and the citizen has while all his real estate properties seized and the returns in his favour blocked. We can prove what we say.
We will also agree that the deployment of value checks and alternative proposals for new tax assessments are counted in thousands and that not all are closed as proposed by the Administration. Far from it.
For all these reasons, the average Spaniard who complies very well with his taxes is already beginning to question what kind of authority this AEAT has, capable of leaving a company or a private individual completely blocked and out of the market before it is discussed whether or not the criterion on which the collection and blocking of assets is based is the one that is most in line with the law.
At AVERUM Abogados we join the growing majority opinion in the profession that the prerogatives of the Spanish Treasury are much more than sufficient and we are totally against providing now to the Treasury Inspectors what even the Police and State Security Forces do not have. There is something that rulers should learn from history: the abuse of power is always expensive.