The Supreme Court stresses that the prior information that must be given to the taxpayer on his rights and the terms and scope of the action is not satisfied with the delivery of the informative annex that usually accompanies the communication of initiation of the inspection procedure itself.
The Supreme Court has recently issued three judgments that take up the legal framework of the entry of the Tax Inspectorate into a constitutionally protected domicile. We refer to the judgments of March 12, 17 and 25, 2026.
These judgments focus on the requirements of the consent of the interested party for it to be sufficient and legitimize the entry of the Inspectorate into the premises and facilities of an entity, completing a jurisprudence headed by the judgments of 10 October 2019 and 1 October 2020 on the reasons for the judicial authorization of entry. These initial judgments were followed by those of (i) 29 September 2023, on the need for judicial authorization for access to a computer or data storage equipment, (ii) 25 June 2024, which clarified the requirements of the authorizing order regarding such access to data storage equipment and, finally, (iii) July 2, 2024 (of section 4 of the Third High Court Chamber), on the impossibility of using the entry to interrogate employees and managers. Meanwhile, Law 11/2021, of 9 July, amended the General Tax Law and the Law on Contentious-Administrative Jurisdiction (“LJCA”) to allow both entry and judicial authorization to be made or granted, respectively, before the formal start of the corresponding inspection procedure. And, more recently, Organic Law 1/2025, of 2 January, has amended Article 93 of the Organic Law on the Judiciary, to give its sixth paragraph a wording that coincides with that received in 2021 by Article 8.6 of the LJCA.
Returning to the 2026 judgments, these focus, as we said, on the issue of the requirements of the consent of the interested party. As is well known, any entry into a constitutionally protected home requires that it be consented to by the interested party or supported by a judicial authorization. The Constitutional Court, in its judgment 54/2015, of 16 March 2015, already required, for the validity of this consent, that the Administration give express and prior information on the rights of the interested party and the terms and scope of the action.
The judgments of the Supreme Court now follow the same path, ruling out that such requirements for prior and complete information can be understood to be satisfied with the delivery of the informative annex that usually accompanies the communication of initiation of an inspection procedure itself. The judgments further emphasize that this annex does not include an express mention of the taxpayer’s right to refuse such entry or to revoke his consent later, at any time. Such information, in the opinion of the Court, should warn the interested party that the only consequence of refusing his consent to entry would be that the Administration could request the corresponding judicial authorization, which may or may not be granted. Accordingly, the Supreme Court annuls the judgments of first instance and the resolutions of the economic-administrative courts, “with all the legal effects inherent in said declaration of nullity“, thus pointing to the radical nullity of the corresponding settlements and penalties. In this way, it qualifies the doctrine that was established in the judgment of October 3, 2022, of Section 4 of the same Chamber.
Having set out this doctrine, these new judgments give rise to some additional reflection. There are three judgments (which all refer to the first), in reality the first two refer to the same case, from the Malaga Chamber of the High Court of Justice of Andalusia, but the third, which overturns a judgment of the High Court of Justice of Castilla-La Mancha, resolves a somewhat different case. On this occasion, the Inspectorate went to the registered office of an entity with an administrative authorization to enter properties and premises, with the apparent aim of accessing all types of accounting and non-accounting data and information and documentation with tax significance, in any medium, and the entity must make this documentation available to the Inspectorate. with access, where appropriate, to the corresponding computer systems or supports. The administrator of the entity gave her consent by telephone and ratified it later, that same morning, in a proceeding issued by the Inspectorate, in which the actions conducted, and the documentation already obtained were recorded. That consent is what the judgment of March 25 considers insufficient due to the absence of adequate information.
In this context, the judgment reiterates the right of the taxpayer to refuse entry, which is true for the purposes of the need for judicial authorization, but does not add any additional distinction according to the scope intended with the entry and the nature of the documentation requested. Therefore, it may be necessary to reconcile this right to refuse entry with the legal duty to cooperate with the Inspectorate to justify compliance with tax obligations.
Recently, the European Court of Human Rights (“ECtHR”) seems to suggest a similar distinction in its judgments of 6 February 2025 (Italgomme v. Italy) and 8 January 2026 (Ferrieri and Bonassisa v. Italy). In both, the ECtHR seems to differentiate between the taxpayer’s duty to provide during an inspection the information that allows the Administration to verify that it has complied with its tax obligations and the Administration’s powers to go further when requesting or accessing other types of information. The ECtHR even admits that the inspection of offices and facilities can be aimed at verifying only the correct declaration of the taxpayer. On the contrary, the Administration’s access to more information, beyond that necessary for the aforementioned verification, would already be of a different nature and would require a different justification and reasoning, from the perspective of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, that is to say, the right to privacy.
Finally, these judgments of the Supreme Court have coincided in time with two other resolutions on the same issue. Firstly, in the judgment of 14 April 2026, of Section 4 of the Third Chamber, related to actions by the Labor Inspectorate, it is stated that judicial authorization is necessary for entry into the home of a legal person even if it does not involve a search of the premises, but admitting the possibility that such authorization is not required when access is limited to areas that are a workplace clearly separated from the offices located in that registered office. And, on the other hand, Section 1 has issued an order of 5 March 2026, which may give rise to a judgment of special significance, as it considers it a matter of cassational interest to determine whether the legal basis on which the home entries of the Tax Inspectorate are based respects the required standard of “quality of the Law” in the terms required by the case-law of the ECtHR in interpretation of Article 8.2 of the referred Convention, as well as to clarify the consequences of access to third-party data when entering a home.
