Supreme Court bolsters protection of taxpayers’ homes against the tax authorities

For the Tax Inspection authorities to enter a taxpayer’s premises—whether belonging to an individual or a company—they must obtain either the consent of the occupier or prior judicial authorisation. This requirement stems from the constitutional principle of the inviolability of the home, enshrined in Article 18.2 of the Spanish Constitution.

This issue is of particular importance because, if the tax authorities enter premises without strictly complying with the applicable legal requirements, any evidence obtained as a result of that entry will be tainted. Consequently, any tax assessments or penalties based on such evidence will be invalid and must be annulled.

Recently, the Supreme Court has handed down two judgments (STS of 12 March 2026 and 17 March 2026) annulling tax assessments and penalties on the grounds that they were based on evidence obtained during inspections carried out with the occupier’s consent, but where that consent had been given without the tax authorities informing the taxpayer that they were under no obligation to grant it and were entitled to refuse.

One of the key conclusions arising from these judgments is that the tax authorities’ usual practice in such cases, although apparently compliant, does not in fact meet the requirements of the law.

Entry onto premises without judicial authorisation

Where the Tax Inspection does not have judicial authorisation, it must obtain the taxpayer’s consent in order to access constitutionally protected premises. It is essential to bear in mind that such consent must not only be given freely, without coercion, but must also be properly informed.

At the start of a tax inspection, the authorities provide the taxpayer with an “Information Annex”, which is generally a standardised document setting out the taxpayer’s rights and obligations. Among the obligations listed in that document is the duty to “allow access to the inspection”. It also states that, where entry into constitutionally protected premises is required, the Inspection must obtain either the taxpayer’s consent or the relevant judicial authorisation.

In the two recent judgments referred to above, the Supreme Court examined whether this “Information Annex” is, in itself, sufficient to conclude that consent has been given in a properly informed manner. The Court’s conclusion is that it is not. Accordingly, where it cannot be shown—by other means—that the taxpayer was informed of their right to refuse consent and of their right to withdraw consent once given, the entry onto the premises will be unlawful and all evidence obtained as a result must be set aside.

The Supreme Court’s reasoning is based on several factors:

• First, the “Annex” does not state that the occupier is entitled to refuse entry freely and without adverse consequences; nor does it indicate that consent, even if initially granted, may subsequently be withdrawn.
• Secondly, the document makes no reference whatsoever to Article 18.2 of the Constitution, which establishes the inviolability of the home.
• Finally, as “allowing access” is listed among the taxpayer’s obligations rather than their rights, a reasonable reader could conclude that they are required to admit the inspectors.

Moreover, the inspection records themselves did not show that the occupier had been properly informed of their right to refuse entry or of their right to revoke the consent initially granted.

Departure from the Supreme Court's judgement of the 3rd October 2022

The lower court judgments appealed to the Supreme Court had upheld the tax authorities’ position, finding that the entries onto the premises were lawful. In doing so, they relied on a previous Supreme Court judgment of 3 October 2022, which had considered consent to be valid where the taxpayer had been provided with the “Information Annex”.

In the 2026 judgments analysed here, the Supreme Court expressly refers to the 2022 decision and emphasises that, in that earlier case, the authorities had demonstrated that the taxpayer was in fact aware of their right to refuse consent and to withdraw it. The circumstances were therefore not comparable to those examined in the 2026 judgments.

What about inspections already carried out where consent was not properly informed?

The impact of these judgments is significant, as the doctrine they establish also applies to inspections that have already taken place. Accordingly, where an ongoing tax inspection involved an entry onto premises, it is essential to examine carefully whether the consent given was properly informed. If the taxpayer was not duly informed in advance, all evidence obtained during the entry will be null and void and cannot be relied upon by the tax authorities.

Should the current rules of governing entry onto premises by the tax authorities be amended?

Beyond the judgments discussed above, it should be noted that the Supreme Court has recently admitted an appeal (Order of 5 March 2026) in which it will address another key issue relating to entries onto premises by the tax authorities. Specifically, the Court will rule on whether this matter should continue to be regulated by ordinary legislation, as is currently the case, or whether, given that the inviolability of the home is a fundamental right, it ought instead to be governed by an Organic Law.

We will see, in the coming months, what conclusion the Supreme Court ultimately reaches.