May tax authorities enter your professional premises without your permission? The fiscal right to entry has been a topic of discussion for quite some time. The Constitutional Court of Belgium provided more insight into the issue in its October 12, 2017 decision (no. 2017-116).
Violation of a fundamental right?
The Constitutional Court responded to the question of whether the right to fiscal visitation conflicts with the right to privacy.
The Court starts by noting that a limitation of a fundamental right may be legal in certain circumstances. But the limitation always has to be specifically in furtherance of, and proportional to, the objective.
The Court decides here that access to professional premises is in specific furtherance of a determination of fiscal (non-)compliance. And the proportionality requirement is sufficiently protected by anti-abuse measures. Thus, entry of professional premises for purposes of fiscal control is allowed, within limits.
Permission to enter required
Within these limits, tax authorities have to obtain permission, prior to entering professional premises. The necessary permission may be granted by the taxable person him/herself or by an authorized representative.
Fiscal authorities may in no case enter the premises without permission.
This implies that the taxable person may deny entrance. However, because there is a duty to cooperate with the tax authorities, denying entrance is sanctionable. Sanctions include administrative fines and possibly criminal sanctions.
The right to search
What about the right to search cabinets and safes etc? The Court decided to apply the same reasoning as outlined above. Tax authorities are once again not permitted to open cabinets and safes themselves, forcefully or otherwise. However, if the taxable person fails to cooperate (by opening the cabinets and safes), he is subject to sanctions.
Invoking the right to remain silent
With this verdict, the Court makes a fundamental distinction between fiscal entry and criminal investigation. The right to remain silent only applies to criminal matters. Thus, one cannot invoke the right to remain silent to avoid the duty to cooperate with tax authorities.
What if there is a legitimate chance of criminal sanctions for a person suspected of tax evasion? Can the right to remain silent be invoked? The Court did not answer this question specifically, but the suspicion of tax evasion combined with the legitimate chance of criminal sanctions seems to justify the applicability of the right to remain silent.
In conclusion
The Constitutional Court has hereby provided further insight into the limits of fiscal entry.
Within these limits, fiscal entry violates the fundamental right to privacy. The Court makes clear that entry may be denied. However, know that obstruction to entrance may lead to penalties.
The court draws a clear line between fiscal entry and criminal investigation.
