Tax Assessment: Analysis of Ordinance No. 10615 of 2024

The issue of tax assessment is of crucial importance for every taxpayer, as it directly affects the legitimacy of tax impositions by the Administration. Ordinance No. 10615 of 2024, issued by the Court of Cassation, provides significant insights into the matter, clarifying the role of presumptions in the evaluation of declared liabilities.

The Regulatory Context

According 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 indications even through simple presumptions, provided that they are serious, precise, and consistent. The Court, therefore, emphasizes that it is not necessary for the Office to provide certain proofs, but rather that the tax judge of merit must carefully evaluate the presumptive evidence provided.

Non-existence of liabilities or false indications - Burden of proof of the Office - Serious, precise, and consistent presumptions - Evaluation by the tax judge of merit - Criteria - Contradictory evidence from the taxpayer. In the context of tax assessment related to both direct taxation and VAT, the law - respectively Article 39, paragraph 1, of Presidential Decree No. 600 of 1973 (referenced by the subsequent Article 40 regarding the correction of declarations by entities other than individuals) and Article 54 of Presidential Decree No. 633 of 1972 - stipulates that the non-existence of declared liabilities, in the first case, or false indications, in the second, can be inferred even based on simple presumptions, provided that they are serious, precise, and consistent, without the need for the Office to provide "certain" proofs; therefore, the tax judge of merit, tasked with the dispute regarding the legitimacy and validity of the tax act, is required to evaluate, individually and collectively, the presumptive elements provided by the Administration, documenting in the reasoning the results of their judgment (which can be appealed to the Supreme Court not for the merits, but exclusively for inadequacy or logical incongruity of the reasons supporting it) and only at a later stage, if they deem such elements to possess the characteristics of seriousness, precision, and consistency, must allow for the evaluation of the contradictory evidence offered by the taxpayer, who bears the burden in accordance with Articles 2727 and subsequent, 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 actions of the Office, but must assess whether the presented presumptions are sufficiently serious, precise, and consistent. Only after establishing the validity of such presumptions can the judge examine the contradictory evidence presented by the taxpayer, who has the burden of proving the incorrectness of the Administration's assertions.

Conclusions

In summary, Ordinance No. 10615 of 2024 provides a clear indication of the methods of assessing direct taxes and VAT. It highlights the importance of presumptions in the evaluation of 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 practitioners, suggesting a careful examination of the evidence and presumptions presented in the context of tax assessment.

Bianucci Law Firm