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Any Tax Assessment Must Be Compulsorily Preceded by a Preliminary Hearing with Taxpayers!

Published: 13/02/17

Here we are at last! Perhaps the dawn of a new era in relations between Inland Revenue Service (Agenzia delle Entrate) and Italian Citizens is beginning to light up a dull horizon.

The question and the related discussion on the subjected matter definitely arose nine years ago, right after a key ruling delivered by the European Court of Justice (ECJ) on December, 18th 2008 (Case number = C-349/07 – Sopropé - ). The Second Chamber of ECJ in deciding a customs case submitted to its jurisdiction (Post-clearance recovery of customs import duties) seized the opportunity to dictate some general and relevant binding principles. Milestones rendered for the benefit of all European citizens, leading far beyond the boundary of the customs case at the stake.

The ECJ judgment on word states the following: “…Observance of the rights of the defence is a general principle of Community law, which applies where the authorities are minded to adopt a measure, which will adversely affect an individual.”  

Further: “In accordance with that principle, the addressees of decisions which significantly affect their interests must be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision. They must be given a sufficient period of time in which to do so.

The European judges eventually point out a general warning: “The authorities of the Member States are subject to that obligation when they take decisions which come within the scope of Community law, even though the Community legislation applicable does not expressly provide for such a procedural requirement. As regards the implementation of that principle and, in particular, the periods within which the rights of the defence must be exercised, it must be stated that, where those periods are not, as in the main proceedings, fixed by Community law, they are governed by national law on condition, first, that they are the same as those to which individuals or undertakings in comparable situations under national law are entitled and, secondly, that they do not make it impossible in practice or excessively difficult to exercise the rights of defence conferred by the Community legal order.”

According to the before mentioned principles the Italian High Court in Rome (Suprema Corte di Cassazione) in joint chambers, on several occasions during the last eight years (for instance see: Judgments/Sentenze n. 26635/2009 – n. 18184/2013 – n. 19667/2014 - n.24823/2015) has consistently confirmed the compulsory nature of a pre-hearing (i.e. contraddittorio) between Italian IRS and Taxpayers.

Apart from some irrelevant variation due to the peculiarity of each case, the High Court states that the omission of this unavoidable task hopelessly causes the invalidity of any tax assessment released and notified by IRS to Taxpayers. This haven has been also sacred by the Constitutional Court in 2015 (Sentence n.132 - 7/7/2015) in order to preserve and grant the constitutional right of each citizen to get a fair and right trial.

In consideration of the above, we seize the opportunity to emphasize a considerable and acute Sentence issued on the matter by the Tax Court of Appeal in Milan (Commissione Tributaria Regionale della Lombardia) on January the 2nd 2017. It definitely prescribes that any tax assessment issued breaching the duty of a pre-hearing with its recipient must be judged as “null and void”, i.e. with no remedy left.

In conclusion, this last trial-appealing ruling is therefore the perfect summa of principles expressed by Jurisprudence during the last decade. A significant contribute on the path of justice and fairness between citizens and Administration.

Our legal and tax firm, thanks to the experience accrued on the matter over last years, is at your complete disposal in order to take care of your personal needs with skilled legal and tax experts. So do not hesitate to contact us, we are ready to assist you in any legal and tax litigation.

 

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Stefano Lecchi, is specialized in tax litigation, extraordinary taxation and to groups of Insurance; he is engaged as associate and team leader for more than ten years.