The Supreme Court once again rejects that Treasury inspections of companies be carried out without prior notice

The High Court annuls the judicial resolutions reviewed in the cassation court due to lack of motivation and justification

As it did in October 2020, the Contentious-Administrative Chamber of the TS has reiterated, in its ruling of September 23, 2021, its rejection of the entry into the headquarters of a company carried out by the Treasury and without prior notification of the start of inspection.

In the opinion of the Supreme Court, it would have been enough to require the appellant entity in cassation “to provide the information that the Administration needed (…), in accordance with the duty established in art. 93.1 of the General Tax Law, to be able to obtain it, in principle, in a less burdensome or invasive way."

After the Contentious-Administrative Court No. 1 of Santa Cruz de Tenerife authorized by order the entry into the company's headquarters and the Contentious-Administrative Chamber of the Superior Court of Justice of the Canary Islands rejected the appeal presented on behalf of the latter, the Supreme Court admitted the appeal filed by the procedural representation of the affected company and appreciated the concurrence of objective cassation interest for the formation of jurisprudence, stated in the following terms:

1.-Determine whether, in order to carry out actions to obtain information related to the application of taxes, only requests from the Tax Administration relating to inspection procedures can be subject to judicial authorization to enter the home. the taxpayer is already liable.

2.-Specify whether in the appeal filed against the aforementioned order authorizing entry into the home, it is required that a copy of the judicial file be delivered to the appellant within the period provided for formulating said appeal.

The Supreme Court reaffirms its doctrine

The Contentious-Administrative Chamber of the TS, without the intention of rectifying what was established almost exactly a year ago, reaffirms its recent doctrine provided for in the aforementioned STS of October 1, 2020, whose second, third and fourth Fundamentals of Law, referred to to the need for a prior inspection procedure, open and made known to the interested party, reproduces extractively.

In the opinion of the Third Chamber of the TS, "it would have been enough to require the now appellant to provide the information that the Administration needed, whether its own or that of third parties (...) to be able to obtain it, in principle, in a less burdensome or invasive way", especially if it is kept in mind that “there is no room for the mere supposition or conjecture that the requirement will be breached” and when in our sanctioning system, “breach of duties of this kind are severely punished” in the LGT.