Unless it is clearly demonstrated that the information request is not related to the functions of the Tax Inspection specified in Article 141 of the General Tax Law (LGT), Notaries are obliged to comply with such requests. Failing to comply with these requirements would constitute a breach of this precept.
The National Court, in its ruling of January 22, 2024, clarified that the obligation of Notaries to provide information applies unless the confidentiality of the notarial protocol exempts them from this obligation. This confidentiality pertains to the intrinsic nature of certain documented data which, due to their relation to strictly personal aspects and the right to privacy, should not be disclosed, even if they have tax relevance.
In cases where a copy is issued at the request of the Administration or judicial bodies, the Notarial Law does not eliminate the requirement of legitimate interest, but rather delimits it within the operational limits of the Jurisdiction or Administration. According to Article 17 bis of the Notarial Law, in force at the time of the request in question, the Notary has the responsibility to verify that the information request comes from a tax authority acting within its official competencies.
This implies that, unless there is clear proof that the request is not related to the functions of the Tax Inspection specified in Article 141 of the LGT, the Notary is obliged to comply with it. It is not relevant if subsequent requests identify the specific inspection procedure, as long as the Notary does not demonstrate that the request is unrelated to the functions of the Tax Inspection.
In the specific case, the Tax Agency requested from the Notary an authorized copy of a public deed of capital increase. Although the request did not provide sufficient information for the Notary to assess the legitimate interest of the requester, the Notary did not reject the request for reasons of confidentiality. Instead, he argued that he had the authority to verify the necessity and appropriateness of sending the document to the requesting authority. However, it was determined that the request did not refer to personal data related to the right to privacy, but to data of tax relevance, and therefore, it should be complied with.
