The Second Section of the Third Chamber, of Administrative Appeals, of the Supreme Court, in its Judgement No. 1231/2020, of October 1, has specified the doctrine on the requirements that must be observed regarding the Warrants to enter the home of the taxpayer, and which in large part derives from that contained in the Judgment issued on October 10, 2019 by said Court.
Said resolution, in summary, states:
1.- The entry warrant must be connected to the existence of an inspection procedure which has already started and notified, indicating the taxes and time periods that concern the investigations, as established in articles 113 and 142 of the LGT. In the absence of this connection, the judge will not be able to adopt any measure due to lack of jurisdiction (articles 8.6 LJCA and 91.2 LOPJ). This prior act must be accompanied by the application.
2.- The possibility of the approval of the entry warranty “inaudita parte” refers to the contingency of not announcing the entry procedure prior to its practice. It must be exceptional and expressly based on its need in the specific case, without it being possible to presume that mere verification provides an unconditional or natural right to enter the home.
3.- There is no entry warrant for exploratory, statistical or undefined purposes, without detailing what specific information it is intended to obtain.
4.- It is necessary that the entry warrant validates and justifies the necessity, adequacy and proportionality of the entry, without allowing automatic, unfounded or uncritical acceptances of the data offered by the Administration. An entry warrant is only admissible after comparative analysis of such requirements, one at a time.
5.- What cannot be used are general or undefined data or information from statistics, calculations or in general, the comparison of the supposed situation of the owner of the home with that of other indeterminate taxpayers, or with the average of spheres of activity, without specification or detailed segmentation that supports the seriousness of such sources. Such analysis, if made in exceptional circumstances, must address all concurrent circumstances and especially the prior conduct of the owner in response to actions or information requests made by the Administration.
Originally Published by Marti & Associates, December 2020
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