When the Tax Administration, in the exercise of the powers legally attributed to it, agrees as a precautionary measure to seal a safe deposit box, the allegation referring to the violation of the right to privacy recognized in article 18.1 of the Constitution is relatively common. Spanish.

The aforementioned right, being located in Section One, Chapter II, Title I of the Constitution, is deserving of the protection that every fundamental right enjoys, ex art. 53.2 CE, although the Supreme Court, in two recent and interesting rulings, has been concerned with delimiting the scope of this right, both from the perspective of the subject affected by the administrative action, and whether or not it is considered a constitutionally protected domicile.

As a framework for the two cited sentences, we look at the literal wording of art. 18 CE, which only contemplates the need for judicial resolution in the case of the right to the inviolability of the home and the right to secrecy of communications, but not in the other rights recognized therein, such as the one we are now dealing with.

From here on, the first of the cited rulings, issued in appeal 99/2023, and referring to actions to verify Corporate Tax and Value Added Tax of a legal entity, analyzes the impact of a measure of this type from the exclusive perspective of the right to privacy, despite the reference that the admission order also makes to home inviolability (said fundamental right was not questioned in the instance).

The key idea of ​​this ruling is that the recognition of the fundamental right to privacy does not extend to legal entities, something that the TS had already stated in a previous ruling 795/2023, of June 14, and the TC in ruling 137/1985 and Order 208/2007.  Starting from this premise, the allegations made by the entity in the document filing the appeal automatically take a backseat, as they all derive from the consideration of the commercial entity as the holder of the right to personal and family privacy provided for in art. . 18.1 of the EC.

Nor are we facing a case, reasons the TS, in which the protection of this right has a place due to connection with that of the natural persons who could be affected, since it cannot reasonably be expected that the safe deposit box of a legal entity will contain data from people's intimate lives, nor has it been proven that this is the case.

In conclusion, it is not necessary, from the perspective of the right to privacy, to obtain judicial authorization or consent of the owner to proceed with the sealing of a safe deposit box located in a bank by the AEAT in an inspection procedure, since Private legal entities are not directly holders of said right and, therefore, no matter how much information with tax significance may affect the privacy of citizens, such a measure can never affect this fundamental right. The parameters of ordinary legality are those that must measure the legality of this administrative action.

The origin of the second of the cited rulings, issued in cassation appeal 4663/2023, is in an appeal filed by two natural persons against a ruling handed down by the TSJ of the Valencian Community through the fundamental rights of the person procedure. The procedure in which the seal had been agreed corresponded to the verification of the Personal Income Tax of both appellants.

In this case, the legal conformity of the precautionary measure to seal a safe deposit box is analyzed, both from the perspective of the right to privacy and from the perspective of home inviolability.

It was intended by the affected individuals that the precautionary seal measure could only be adopted, as it affected both fundamental rights, with the consent of the owner or judicial authorization. This is because, in terms of privacy, it prevented them from freely accessing and enjoying what was deposited, and in terms of domicile, because what was relevant was “its destination or use” and not “its location.” In the opinion of the appellants, a consequence of the above would be the need to enter into the proportionality and suitability of the adopted seal.

The TS begins by delimiting in this case what is understood by domicile for the purposes of art. 18.2 CE: It is not identified with the civil or administrative, it is broader, a space where the most intimate freedom is exercised. Therefore, a container, such as a safe deposit box rented from a bank, is not a constitutionally protected domicile as it is not a suitable place, neither by nature nor by destination, to develop private life. From here, set the following criteria:

1. The fact that it is not a constitutionally protected domicile does not mean that it cannot accommodate aspects of a person's private life or intimacy, which brings us to art. 18.1 EC.

2. The safe seal can affect the privacy of a natural person, but in a less intense way, because they are being deprived of having access to what is inside; there is no full privacy if you cannot have access to what is intimate. .

3. This impact on privacy is not a sacrifice on which the reservation of jurisdiction weighs, such as that which can affect the home or communications, or the opening of the safe.

4. If this reservation of jurisdiction does not govern, neither does the consent of the depositor, which is his budget.

In short, an ex post control of the precautionary seal measure is sufficient, with a demand for power of attorney, in the sense of legal authorization, which exists ex art. 146 LGT, and another of application, in the sense of proportionality, suitability and necessity of the measure that the Administration must justify.

The full text of the rulings can be consulted at the following links: STS 03/21/2024 and STS 04/04/2024 .