Tax Assessment: Analysis of Ordinance No. 10615 of 2024
The subject of tax assessment is of crucial importance for every taxpayer, as it directly concerns the legitimacy of tax impositions by the Administration. Ordinance No. 10615 of 2024, issued by the Court of Cassation, offers significant insights into the matter, clarifying the role of presumptions in evaluating declared liabilities.
Regulatory Context
Pursuant to Article 39 of Presidential Decree No. 600 of 1973 and Article 54 of Presidential Decree No. 633 of 1972, the Administration may infer the non-existence of declared liabilities or false statements also through simple presumptions, provided they are serious, precise, and consistent. The Court therefore emphasizes that it is not necessary for the Tax Office to provide certain proof, but rather that the tax judge of merit must carefully evaluate the presumptive evidence provided.
Non-existence of liabilities or false statements - Burden of proof on the Tax Office - Serious, precise, and consistent presumptions - Evaluation by the tax judge of merit - Criteria - Counter-proof by the taxpayer. In the context of tax assessment relating to both direct taxation and VAT, the law - respectively Article 39, paragraph 1, of Presidential Decree No. 600 of 1973 (referred to by the subsequent Article 40 regarding the rectification of declarations of subjects other than natural persons) and Article 54 of Presidential Decree No. 633 of 1972 - provides that the non-existence of declared liabilities, in the first case, or false statements, in the second, may also be inferred on the basis of simple presumptions, provided they are serious, precise, and consistent, without the need for the Tax Office to provide "certain" proof; therefore, the tax judge of merit, seized of the dispute on the legitimacy and foundation of the tax act, is required to evaluate, individually and collectively, the presumptive elements provided by the Administration, noting in the grounds for decision the results of their judgment (appealable to the Court of Cassation not on the merits, but exclusively for inadequacy or logical inconsistency of the grounds supporting it) and only subsequently, if they deem such elements to possess the characteristics of seriousness, precision, and consistency, must allow for the evaluation of the counter-proof offered by the taxpayer, who bears the burden of proof pursuant to Articles 2727 et seq. and 2697, paragraph 2, of the Civil Code.
The Role of the Tax Judge
The Court of Cassation, in its decision, reiterates that the tax judge must conduct a careful analysis of the elements provided by the Administration. This means that the judge does not merely confirm the Tax Office's actions but must assess whether the presumptions presented are sufficiently serious, precise, and consistent. Only after establishing the validity of these presumptions can the judge examine the counter-proof presented by the taxpayer, who bears the burden of demonstrating the inaccuracy of the Administration's claims.
Conclusions
In summary, Ordinance No. 10615 of 2024 provides a clear indication on how direct taxes and VAT are assessed. It highlights the importance of presumptions in evaluating declared liabilities and the crucial role of the tax judge in deciding on the legitimacy of tax acts. The ruling offers important guidance for taxpayers and legal professionals, suggesting a careful examination of the evidence and presumptions presented during tax assessment proceedings.
