A visit of the tax authorities

The tax authorities (VAT or income tax) have access to the premises used for your professional activity. But when they also want to 'visit' your home or private premises, they should first pass with the magistrate to obtain an authorization. Such visit can only be made between 5 AM and 9 PM.

More than a formality

The Special Tax Inspection office (BBI) wanted to make a visit at the registered office of a company and with the directors on their private address. The ask for, as it should be, for an authorization from the magistrate and obtain this almost immediately. After somewhat less than two weeks they proceed. The magistrate's decision is not contradictory: the concerned tax payers do not have the possibility to appear before the magistrate and discuss whether it makes any sense to make such visit. This is not illogical: the tax authorities look to have a certain surprise element to avoid that proof disappears.
But in the case at hand the magistrate had given his approval for the house search without much consideration. And that was a bit too simple for the Constitutional Court (judgment nr. 104/2019).

Post-control should be possible

The main issue for the Constitutional Court was that the BBI's application didn't contain much information why the house search was in this case necessary. Consequently, the magistrate's decision was therefore barely motivated.
As described above it goes without saying that the magistrate takes its decision at the request of the tax authorities, without the tax payer being involved. But in order to make the post-control on the magistrate's decisions possible, these should be clearly motivated.

The tax authorities' guidelines state that the application for a visit with a magistrate should be concisely motivated. In the application, it should be made clear why the house search is necessary.

What is there to be controlled?

Each investigation by the tax authorities of a tax payer should be legitimate, foreseeable and necessary. This applies to all investigation actions. Visitation of private premises is, as it is the case for visits to professional premises, an investigation action which should comply which these conditions. A house search should be reasonable in relation to its goal. This is exactly the reason why a magistrate should give an authorization. If such authorization is given automatically, without motivation of the application, is it afterwards not possible to judge whether or not the legal conditions were fulfilled. The Constitutional Court therefore literally states that the application for a house search should, next to the information of the file, also mention the 'reason why it is necessary'.

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