Can the tax authorities copy your computer's hard disk?
Can the tax authorities copy the hard disk of your PC in order to further in-depth investigate your tax position of those of third parties? It happened to a Belgian company with a Luxembourg sister company. The tax authorities copied the entire hard disk without explicit consent of the tax payer. The tribunal found that the tax authorities went too far, but the appeal court didn't have a problem with it.
Ask a copy or take a copy?
Two legal provisions apply. Article 315bis Income Tax Code 1992 (ITC92) states that you should provide the tax authorities with a copy of your computer files, if the tax authorities ask you to do so, in the format requested by the officers. On the other hand, there is article 319 ITC92: officers can enter professional premises and examine what's on the computers (and make prints).
When the tax authorities visit and make copies of the hard disk, does this fall within the scope of article 315bis (you have to provide them with a copy) or article 319 (no permission needed)?
Also note that the tax payer had private files on the computer. So there was not only the issue of 'no permission' but also of 'breach of privacy'.
Tribunal versus court
The tribunal which had to judge first on the situation, ruled advantageous for the tax payer. The judge believed that article 315bis should be applied and since this states that the tax authorities can make copies with the assistance of the tax payer, this implies that the tax payer should give its consent.
The court sees it otherwise: article 319 allows the tax authorities to access professional premises without consent and consult books and documents in order to audit the taxable income. According to the court computer files are 'books and documents'. Examining such documents can take a very long time and you can expect from the tax authorities to sleep in your office, so it is not illogic that the tax authorities make a copy of these files.
When in criminal cases a house search is made, the investigators need a search warrant. In case the tax authorities want to access private premises, the magistrate should give permission. But this is not needed for professional premises, the tax authorities can enter and open cabinets and drawers. When these are locked, you should take your key an unlock them. Likewise, if your computer is password protected, you should provide the tax authorities with the password so they can see what's on the PC.
Is there then no privacy breach, since there can be private matters on the PC? No. Both national and international case law confirm that a full copy is justified, since the alternative (select information before copying) may be so time-consuming, that the investigation lacks efficiency.
The case which was judged by the court contained some particularities which might have an impact on the final decision.
Apparently, the tax payer had been very cooperative during the investigation. He showed the officers where they could find the information they were looking for and has given the computer's password without reservation.
Additionally, the tax payer was not the object of the investigation. It was an investigation concerning a sister company in Luxembourg. With the information, the tax authorities wanted to show that the Luxembourg company was an empty entity and that actually all transactions were performed from Belgium. The privacy does no longer apply. Also, procedural errors can be 'corrected' in case the tax payer gives its consent.
The judgment of Brussels (9 October 2019, 2019/AF/123) shows that the tax authorities' powers are very extensive. And that you cannot mingle private with professional correspondence.