Prepared by Carlo Romano, Flaminia Ferrucci and Daniele Conti
The epidemiological emergency due to COVID-19, i.e. the disease caused by the novel coronavirus SARS-CoV-2, required prompt regulations related to the offices within public bodies and the judiciary, and aimed at counteracting the infection spreading as far as possible. Below are the measures taken up to March 8th, 2020.
Tax judiciary related to the set up of the former «red zone»
Without prejudice to further provisions relating to tax judiciary, such matter has been governed firstly by the decree-law of 2 March 2020, no. 9 (although not expressly providing for in this regard) and, lastly, by the decree-law of 8 March 2020, n. 11.
With respect to the rules originally concerned with the former «red area» (referred to in Annex 1 to the Prime Minister’s decree of 1 March 2010), the suspension of mandatory deadlines (Art. 10, para. 4), including those for court proceedings, concerned with the statute of limitations of any rights, actions and objections from 22 February until 31 March 2020, should be reasonably applicable also within tax proceedings for anyone residing or working in the aforementioned «red area».
The legal provisions formally referring to proceedings before other courts (e.g.: Art. 10, para. 17, of the same decree no. 9/2020) seemed reasonably applicable also to tax court proceedings, i.e.:
- the deadlines for fulfillments before courts, as well as communications and notifications that anyone must carry out in the «red area» are suspended until 31 March 2020;
- the hearings until the same date are postponed, in relation to proceedings where the parties (unless standing in person before court) appointed professionals that are resident or domiciled in the «red area»;
- the relief from the expiration of deadlines, if proved or likely that the failure to comply with such deadlines between 22 February and 2 March depended on emergency restraint measures.
Rules on hearings before tax courts at national level
As mentioned, the matter was again subject to emergency measures with effects on the entire national territory in the context of the aforementioned decree-law 8 March 2020, n. 11.
More specifically, Article 1 provides for the postponement of all hearings to a date subsequent to 22 March, except for proceedings whose delay may seriously harm the parties.
This postponement is aimed at allowing the judicial offices to take ad hoc organizational measures by the court offices suitable to abide by the health and hygiene standards (to avoid gatherings and close interpersonal contacts) until 31 May 2020.For instance, the measures that the court offices may take include:
- limitation on public access, except for urgent activities, and the opening hours of the court offices;
- regulation of access to services by telephone or internet booking, in order to guarantee the staggered access of users;
- adoption of guidelines for the setting and scheduling of hearings; iv.conducting public hearings behind closed doors or with remote connections;
- (further) postponement of hearings to a date subsequent to May 31, 2020 (except for proceedings that cannot be deferred);
- electronic exchange of written notes in lieu of the public hearing.
Each court office may provide for hearings to be held at distance (Article 2, paragraph 2, let. f) of decree-law no. 11/2020); however, such a measure would not implement Article 16, paragraph 4, of the decree-law of 23 October 2018, no. 119, generally allowing tax court hearings «at distance», through particular audiovisual systems.
Rules on suspended deadlines in tax court proceedings
Article 1, paragraph 2, of decree-law no. 11/2020 provides for the suspension of the deadlines from 9 to 22 March that are related to fulfillments within the above described pending proceedings.
Such rule requires, at the moment, further clarification: while, on one hand, court proceedings are pending from their opening up to a final decision (cf. Cass. Civ., Sec. Un., 12 December 2013, n. 27846), on the other hand, the «proceedings described in paragraph 1», to which the decree makes express reference, could be those whose hearings are postponed (see press release of the Ministry of Justice of 8 March 2020, anticipating the publication in Official Journal of the decree-law at hand).
Therefore, the deadlines in tax court proceedings should be suspended in tax disputes where hearings are postponed.
Furthermore, the suspension of the limitation periods, provided for in Article 2, paragraph 3, of the decree-law n. 11 of 2020, appears to be highly limited in the proceedings before tax courts, given the mandatory nature (as of July 2019) of the electronic tax court proceedings, imposed by article 16 of the decree-law of 23 October 2018, n. 119. Obviously, such suspension should be still applicable to “paper” tax cases and to the cases in which the taxpayers are represented by themselves, as long as the relevant fulfillments cannot be performed due to the measures taken by the respective tax court offices.
Clearly, the new decree filled the apparent legal gap created in the aftermath of the first emergency regulation on the performance of tax judiciary relating to the former «red area». However, this latest decree must also coordinate with the (albeit referred to) Prime Minister’s decree of 8 March 2020, which severely limits personal movement and interactions.
Measures taken by the Lombardy and Veneto Tax Courts
Before the decree-law no. 11/2020, each tax court had adopted ad hoc regulations on the flow of users and on how hearing are conducted.
Currently, those measures, at least in part, must be reviewed in light of the aforementioned decree or confirmed on the basis of the therein envisaged procedures and understandings.
We believe that some of the resolutions taken by certain judicial offices could be appropriately reported below:
- decree no. 5/2020 of the President of the Provincial Tax Court of Milan, which postpones public hearings and appeals for enforcement, and demands the decision on the requests for preliminary injunctions to the chamber president, that, in case of rejection, schedules for handling in collegiate hearing;
- decree no. 08/2020 of the President of the Lombardy Regional Tax Court postpones the hearings scheduled between 5 and 31 March, without prejudice to handling of proceedings in closed sessions and of preliminary injunction requests, while decree no. 6/2020 of the Director of the same Tax Court restricts the access of users to the court registrar office for urgent and non-deferrable fulfillments or by reservation for other services;
- presidential order of the Veneto Regional Tax Court of 5 March orders the precautionary deferral of all the hearings scheduled between 9 and 28 March, also in the Verona chamber, and in all the provincial tax courts within Veneto region, and without prejudice to preliminary injunctions and non-deferrable cases, upon motion by one of the parties subject to closed session resolution.
Tax cases before the Supreme Court
The restraint measures taken to date, however, are concerned also with tax courts away from the areas so far considered to be infectious outbreaks.
For instance, the Supreme Court issued a notice dated 6 March 2020, which is applicable also to the procedures pertaining to the Tax Chamber, aimed at reducing crowding in front of the premises hosting the Central Civil Registrar (located in Rome), recommending to send the appeals and responses by post in pursuance of Article 134 of the implementing rules of the Italian civil procedure code.
Those measures add on top to the previous order of the First President of the same Supreme Court, dated 24 February, which already required a regulation of the flow of parties and public in the courtrooms.
The postponement of the hearings, referred to in Article 2 of decree-law no. 11/2020, is reasonably applicable also to the Supreme Court. To this effect and in addition to the rules providing for the reorganization of the hearings’ setting, it is worth recalling the Guidelines of the Superior Council of the Magistracy of 5 March, according to which the performance of the activities of the magistrates from home must be favored.
Precautions taken by tax authorities
In the very first place, the opening of each office of the tax authorities should be checked in light of the notices published on the website of the Revenue Agency. As of March 8, there are still no measures on a national scale relating to the operations of the offices of the tax authorities.
However, compliance with the health and hygiene measures provided for in the Annex to the aforementioned Prime Minister’s Decree of 8 March 2020 is reasonably required, primarily abiding by the safety distance of one meter and the restriction to usual expression of interpersonal relationships.
We are aware of certain measures taken in recent days and aimed at reducing crowd in offices (such as, for instance, limits on the usability of lifts, maximum capacity and positioning of users within those) as well as the control on flow of visitors.