New provisions grant judicial police powers to Belgian tax inspectors to combat fraud

Published


The law of 17 March 2022 regarding various fiscal provisions to combat fraud has recently been published and adopted. It includes new tax provisions that remove the existing legal obstacles for officials of the Belgian tax administration to participate in judicial investigations. This law provides for a new legal framework that allows designated tax authority officials to join investigations undertaken by Multidisciplinary Investigation Teams (‘MOTEMs’ – multidisciplinaire onderzoeksteams / équipes d’enquête mixtes).

MOTEMs are in charge of specialised criminal investigations under the supervision of the Public Prosecutor (‘PP’). The possibility to compose a MOTEM, on an ad hoc basis, was created in 2014 with a view to tackle economic and financial crime, social and fiscal fraud and cybercrime. MOTEMs have already been successfully deployed in cases of social fraud.

A minimum of 25 agents from the Special Tax Inspectorate (‘STI’ – BBI/ISI) will be granted the grade ‘Judicial Police Officer’. These agents will be able to actively participate in multidisciplinary criminal investigations and carry out house searches, interrogations and seizures of data and other information. It is worth noting that these designated tax officials cannot use the extended and special investigative powers during ordinary tax investigations.

The new legal provisions do not provide for a requirement for the tax officials to show legitimation documents when they are assisting a MOTEM. This can create confusion for the taxpayers who are subject to such an investigation. Of course, in the case of house searches, tax officials must show a search warrant from an investigating judge.

A tax official cannot assist a MOTEM investigation if they were already involved in an ongoing administrative investigation for the same taxpayer/matter. The legislator did not specify whether the same principle would apply to administrative investigations which are already closed.

Information gathered during MOTEM investigations can be used to assess taxes and establish infractions of tax provisions.

When asked about the profile of the tax officials in question, during a parliamentary debate, the Minister of Finance clarified that these officials are part of the STI and would have expertise in specific matters such as VAT-carrousels, international constructions, conduit arrangements and transfer pricing.

By introducing these new provisions, the Public Prosecutor will be able to call upon the specialised knowledge and expertise of these STI tax officials to further combat serious and organised tax fraud. The involvement of STI agents within MOTEMs also aims to solve the lack of resources of the specialised services of the judicial police.

It’s possible that this legal initiative may come under pressure due to compatibility issues with the principle of the separation of powers. This was one of the reasons why the restrictions – which are now abolished – were introduced by the Charter of the Taxpayer in 1986. In some cases, there is also the risk that the taxpayer’s fundamental rights, such as the right to a fair trial, might be infringed.

For more information, please contact: Bram Markey

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