Assistance of a lawyer in tax matters
Who is arrested and brought before the investigating judge, has the right to be assisted by a lawyer from the start. This right is internationally recognized since the judgment of the European Court of Justice in the Salduz-case. Is this Salduz-doctrine also applicable in tax matters?
The Salduz-case is about a young man who was arrested in Turkey during a demonstration. During the interrogation he confessed, but afterwards withdrew these confessions before the prosecutor and the investigating judge. It was only then that he obtained the assistance of a lawyer. But according to the accused he confessed under pressure. Notwithstanding he was convicted based on the first interrogation.
The case finally came before the European Court of Justice which ruled that an accused should have access to a lawyer as soon as the interrogation by the police starts. Confessions made while the accused had no access to a lawyer cannot be accepted as evidence.
Belgium incorporated this fundamental right in its legislation.
In tax matters
Tax matters can also lead to criminal offences. In case a tax payer is the subject of an investigation, the question is whether the Salduz-doctrine applies. In a case before the tribunal of Luxemburg this question came up (judgment of 4 March 2020 - Role n° 18/143/A).
Following a VAT audit the turnover of a camping owner was increased substantially. Besides the VAT due, he should also pay late payment interest and a fine. The tax payer accepted this because - so he stated before the tribunal - he was put under pressure. The tax officers allegedly threatened him with more higher fines if he did not accept the proposition.
Before the tribunal, the tax payer also states that the investigation was not properly conducted, since during the first interrogation he had no access to a lawyer. In his opinion the Salduz-doctrine applies since a tax investigation which reveals tax fraud can lead to criminal sanctions.
No Salduz in tax investigation
The tribunal follows the existing case law that the Salduz-doctrine does not apply in tax matters. The most important reason is that tax inspectors do not do anything else then investigations. They cannot take coercive measures, nor deprive someone's liberty.
The tax payer however argued that in fact he was put under pressure since the tax officers threatened with higher fines. But the tribunal found that the audit was not about tax evasion, but following the fourth consecutive infraction of the same kind, non-filing of a return without the intention to evade tax.
Further it was an announced audit, so the tax payer did have the possibility to see a lawyer: it is not for the tax authorities to ensure that the tax payer's lawyer provides assistance during such audit.
Finally, and maybe this is the most important item, the audit cannot be considered as an investigation or legal inquiry.
Clearly, the tax payer can be assisted by a tax consultant, accountant or lawyer. But the fact he is not present, is not a violation of his rights. Assistance in tax matters is no fundamental right, but an own choice.