The law of 17 March 2022 regarding various fiscal provisions and combat against fraud has been published. This law provides for a legal framework that allows designated officials of the tax administration to cooperate and take part in investigations, by so-called Multidisciplinary Investigation Teams “MOTEMs” (multidisciplinaire onderzoeksteams/équipes d’enquête mixtes). These MOTEMs are in charge of specialized 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 in order to tackle economic and financial criminality, social and fiscal fraud and cyber criminality. MOTEMS have already successfully been deployed in social fraud cases.
The adopted new tax provisions remove the existing legal obstacles for officials of the Belgian tax administration to participate in a judicial investigation. More specifically, the grade of Judicial Police Officer will be granted to a minimum of 25 agents of the Special Tax Inspectorate (“STI” - BBI/ISI). These agents will be able to actively participate in a multidisciplinary criminal investigation and carry out house searches, interrogations and seizures of data and other information. The tax officials can not use these extended and special investigation powers during ordinary tax investigations.
The new legal provisions do not provide for a specific legitimation requirement for the tax officials when they are assisting a MOTEM. This can create confusion for the persons that are subject to such an investigation. Of course in case of house searches, a search warrant of an investigation judge has to be submitted. Information gathered during MOTEM investigations can be used in order to assess taxes and establish infractions of tax provisions.
A tax official cannot assist a MOTEM investigation if he/she was already involved in an ongoing administrative investigation to which the judicial investigation relates. The legislator did not specify whether the same principle would apply for closed investigations by the tax administration.
When questioned, during the parliamentary debate, about the profile of the tax officials concerned, 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 as well as transfer pricing.
By introducing these new provisions, the Public Prosecutor will be able to call upon the specialized knowledge and expertise of agents of the STI to further reinforce the combat against serious and organized tax fraud. The involvement of STI agents within the MOTEM’s also aims at solving the lack of resources of the specialized services of the judicial police. These capacity issues on a judicial level have been a sore spot for a while and has recently been admitted by the Brussels Prosecutor-General in the specialized economic and financial press (De Tijd, 29/3/2022, Brussels gerecht laat een op vijf fraudedossiers ongemoeid).
The compatibility of this legal initiative with the principle of separation of powers may come under pressure, which 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 a certain risk for infringements of the fundamental rights of the taxpayers, such as the right to a fair trial.
In view of this new development, the PwC Crisis app will soon be updated with a new feature including the MOTEM investigations. You can find more information on our dedicated webpage.
