Commentary on Judgment No. 22072 of 2024: The Obligation of Prior Adversarial Proceedings in Tax Evasion

Judgment No. 22072 of August 5, 2024, issued by the Court of Cassation, addresses a highly relevant issue in tax law: prior adversarial proceedings in tax evasion disputes. This legal principle is crucial for ensuring a proper balance between taxpayers' rights and the prerogatives of the tax administration.

Context of the Judgment

The dispute originated from a notice of assessment issued against a taxpayer, Ms. G. D. M., contested by the State Attorney General's Office. The Court reiterated that, in cases of anti-evasion disputes, specific procedures must be followed, even when the situations do not fall within the typified hypotheses of art. 37-bis of Presidential Decree No. 600 of 1973.

The Ruling's Headnote

Tax Evasion - Prior Adversarial Proceedings - Evasive Hypotheses Not Typified by Art. 37-bis of Presidential Decree No. 600 of 1973 - Obligation - Basis - Consequences. In matters of anti-evasion disputes, even if not attributable to the hypotheses contemplated by art. 37-bis of Presidential Decree No. 600 of 1973, the peculiarities of assessing evasive situations and the decisive role that elements provided by the taxpayer can play in it impose prior adversarial proceedings, as the tax administration is required, under penalty of nullity of the tax act, to request clarifications from the taxpayer and to observe, before issuing the notice of assessment, a 60-day deferral period, commencing from the date of receipt of the request.

This headnote clearly highlights that the Administration cannot proceed with issuing a notice of assessment without first establishing adversarial proceedings with the taxpayer. This obligation is considered essential to ensure that the taxpayer has the opportunity to provide clarifications and documentation useful for their defense.

Practical Implications of the Judgment

The practical implications of this judgment are significant and deserve to be emphasized:

• Prior adversarial proceedings become a fundamental right for the taxpayer, who can thus defend themselves adequately.
• The tax administration must strictly adhere to the foreseen timelines, particularly the 60-day deferral period.
• Any omission by the Administration in complying with these procedures can lead to the nullity of the tax act.

These provisions not only protect taxpayers' rights but also contribute to ensuring greater transparency and correctness in the operations of the tax administration.

Conclusions

In conclusion, judgment No. 22072 of 2024 represents an important step forward in protecting taxpayers' rights and affirming the principle of prior adversarial proceedings. It is crucial for taxpayers to be aware of this right and for the tax administration to scrupulously respect its provisions. Only in this way can a fair and just tax system for all be guaranteed.