by Lisa Heynderickx and Shefaly Rahman
In order to check the accuracy of tax returns, the tax administration may decide to visit a taxpayer, often unannounced. Although the tax authorities are bound by legal provisions when carrying out these fiscal entries, there is often debate about the limits of the law. Two recent Supreme Court decisions provide more clarity.
In the context of a visitation of a private residence, which requires an authorisation from the magistrate, the Court ruled that the authorised officers may only enter this residence after the consent of the taxpayer. Moreover, the Court explicitly stated that this permission must be permanent.
The consent of the taxpayer can be refused or withdrawn both before and during the inspection. However, the The Minister of Finance stresses that the judgment should not be considered as a licence to not cooperate in tax audits. In fact, the law provides for the imposition of fines and periodic penalty payments for bad faith non-cooperation.
Moreover, in the context of a visitation of business premises, the court ruled that competent officials have the right to examine books and records located in closed furniture, bins, or even refrigerators. The Court immediately nuanced this by stating that even in this case, the taxpayer can put their foot on the brake. In that case, the tax administration must respect this resistance and cease its investigative acts.
In our opinions, we rely on current legislation, interpretations and legal doctrine. This does not prevent the administration from disputing them or from changing existing interpretations.
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