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23 October 2024

Be careful with your holiday photos! Do’s and don’ts during a fiscal visitation regarding company mobile phones and company computers

In many cases, company mobile phones and company computers are also used for private purposes. What are the consequences if the tax authorities wish to investigate your mobile phone or computer as part of a fiscal visitation? Does its private use result in the impossibility of a fiscal visitation?

New jurisprudence on fiscal visitations

The fiscal visitation remained a hot topic since several years. Recently, the Court of Appeal of Ghent ruled again on this subject. In this case, the tax authorities went to the registered office of the company as a part of a fiscal visitation to inspect their bookkeeping and computers. They took a copy of a mailbox that was used for both professional e-mails and private e-mails. The taxpayer did not oppose to this during the fiscal visitation but claimed afterwards that this constituted a breach of his confidentiality of correspondence.

However, the Court of Appeal of Ghent disagreed. The lack of a clear distinction between private and professional e-mails could “significantly limit the tax authorities’ investigative capabilities” , according to the Court. The Court therefore stated that it is up to the tax authorities and not the taxpayer to determine which e-mails are relevant for tax purposes or not. However, the investigative measures applied by the tax authorities must be purposeful and proportionate in the context of the objective of the fiscal visitation. The taxpayer can rely on the confidentiality  of correspondence, but must provide “plausible evidence” that the company computer or mailbox contains items that are subject to this confidentiality.

Taxpayer’s consent remains a game changer

The Supreme Court made a relevant ruling some time ago. The Court ruled that the tax authorities require prior consent from the taxpayer before entering the professional premises. Furthermore, this consent must remain in place throughout the entire fiscal visitation. If the taxpayer withdraws  his consent, the fiscal visitation must be terminated.

Once the taxpayer allows the tax authorities into his professional premises, the tax authorities have an “active right of search”. The Court of Appeal of Ghent goes even further by stating that it is not up to the taxpayer to determine which data the tax authorities can view. However, the taxpayer does retain the possibility  to oppose to these actions by the tax authorities by withdrawing his consent. This refusal may entail sanctions for the taxpayer, such as a fine or the imposition of a penalty payment. But the taxpayer still has the possibility to prevent the tax authorities from making too eager inspections of a mixed mailbox.

Conclusion

It follows from the judgment of the Court of Appeal that the tax authorities can also inspect mixed-use computers and mailboxes when there is no clear distinction between a mailbox for private use or for professional use.

Furthermore, in our opinion, the principles of the judgment apply not only  to mixed-use computers and mailboxes, but also to mixed-use mobile phones and tablets. After all, it is not inconceivable that you will find multiple mailboxes – both private and professional – on a mobile phone or tablet used for professional purposes.

We therefore believe that it is relevant to expressly limit your consent to the professionally  used mailbox on your mobile phone or tablet prior to the start of the fiscal visitation. In this way, it is avoided that the tax authorities will try to rummage through private mailboxes during a fiscal visitation to find tax-relevant information.

Evert Moonen and Frank De Langhe
De Langhe Attorneys

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