House search: Court waters down secrecy safeguard

Alexander Wunderlich

Being part of the constitutional principle, the legislator protects the relation between client and tax advisor in a special way. Similar to lawyers, the advisor’s obligation to confidentiality is a keystone of the professional activity.  By operation of law, the tax advisor is a person whose profession swears him to confidentiality.

Up to now, one could act on the assumption that the correspondence between client and tax advisor was part of the secrecy safeguard. However, the Higher Regional Court Vienna (Oberlandesgericht Wien) deviated from this view: In the course of a house search, the e-mail correspondence between the client and the tax advisor was seized. Promptly, protest was lodged and the data medium was requested to be sealed and not to be admitted as evidence. The court did not acknowledge that objection. In essence, the justification stated that the data medium has not been in the tax advisor’s power of disposition but in that of the client.

If the house search had been at the tax advisors place, utilisation would not have been permitted.