In a recent ruling of September 29 of the Supreme Court, it is established as a doctrine that the Treasury may not examine documents in electronic devices (computers, cell phones, tablets, memory sticks, etc.) in an inspection if fundamental rights are violated.
In a recent ruling of September 29 of the Supreme Court, it is established as a doctrine that the Treasury may not examine documents in electronic devices (computers, cell phones, tablets, memories, etc.) in an inspection if fundamental rights are violated.
The protection of business privacy in the face of tax inspections is a highly relevant issue in the tax field. It is essential to understand the legal limits that govern these actions, from the requirements to enter the home to the access to data in electronic devices. Recent case law emphasizes the importance of proportionality and necessity in these actions, with special emphasis on safeguarding the fundamental rights of companies.
Supreme Court Ruling of September 29, 2023
Recently, the Supreme Court has issued a judgment on September 29, 2023 (appeal no. 4542/2021) that has a significant impact in this area. The ruling establishes that the Tax Administration is not allowed to examine documents on electronic devices, specifically personal computers, except in certain situations and always under strict judicial supervision.
Annulment of a judgment of the Murcia High Court of Justice
This decision of the Supreme Court overturns a judgment of the Murcia High Court of Justice, which upheld the order issued by a court for the authorization of entry and access to the computer. In this situation, access to the appellant’s computer was allowed, considering that a computer was equivalent to a home.
Limits for examining documents on electronic devices.
Both judicial bodies understood that the regime foreseen for the authorization of entry into the home is comparable to the access and processing of information stored on electronic devices (computers, cell phones, tablets, memory sticks, etc.).
Jurisprudential Doctrine of the Supreme Court
The limits to examine documents in electronic devices have been clearly delineated by the Supreme Court with this ruling. It is established that the entry and search of constitutionally protected homes cannot authorize the copying, sealing, capture, possession, or use of the data contained in a computer. However, these rules extend to other administrative actions aimed at accessing and processing information stored in electronic devices protected by the fundamental rights to personal and family privacy and secrecy of communications.
Necessity, adequacy, and proportionality criteria
The Supreme Court has equated judicial authorization to enter a home with authorization to obtain computer data relevant to the Tax Authorities. However, the Inspectorate must follow criteria of necessity, suitability and proportionality when examining the data.
The judgment establishes, to this effect, the following jurisprudence:
1) Limitations in rules of competence and procedure.
The rules of competence and procedure that the procedural law establishes for the judicial authorization of entry into a constitutionally protected home are inadequate to authorize access to data on a computer when this activity takes place outside the home and may affect other fundamental rights.
2) Necessity, adequacy, and proportionality requirements
In addition, the requirements of necessity, adequacy and proportionality of the measure apply to administrative actions aimed at accessing and processing information stored in electronic devices.
3) Evaluation by the authorization judge
These requirements must be evaluated by the authorization judge, and the Administration cannot rely solely on its account, but must submit the information to a minimum contrast and verification.
Priority of fundamental rights
The protection of fundamental rights takes precedence over the exercise of administrative powers, especially in the absence of a complete, direct and detailed legal regulation.
Collaboration with the Inspectorate
In this context, it is important to emphasize that collaboration with the Inspectorate is essential, and any request for information must be dealt with in a timely and complete manner, if it is legally required.
For further information, please consult with Tax consulting
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