Prepared by Carlo Romano, Rubina Fagioli and Maurizio Foti
On October 29, 2020 the law-decree no. 137 of 2020, providing «Further urgent measures to protect health, employees and enterprises, public justice and safety, due to the epidemiologic emergency of the Covid-19 pandemic» (so-called “Decreto Ristori”) entered into force.
In general, Article 27 of the Decreto Ristori, setting up new measures in relation to tax proceedings, authorizes the remote public hearings and chambers, however leaving the possibility to discuss and decide the hearings having regards only to the documental files in the cases the Tax Courts do not possess the IT instruments or equipment to carry out the video-hearings.
More in detail, from a temporal standpoint, pursuant to Article 27, paragraph 1, of the Decreto Ristori, the remote public hearings and chambers are authorized «until the emergency situation in the Italian territory due to Covid-19 pandemic ceases», therefore until 31 January 2021, consistently to the law-decree 7 October, 2020, no. 125, which has prorogated the emergency status until that date.
The remote hearings can be authorized «in case of prohibitions, limits, traffic bans within all or part of the Italian territory due to the emergency status or other situations that might put in jeopardy the public safety of the persons involved in the tax proceeding».
The latter provision as so worded, not immediately clear, does not clarify whether the limits to the circulation and/or the warning situations, should derive from specific measures taken by the competent authorities or derive from factual circumstances. In these latter cases, the Presidents of the Tax Courts should first ascertain that such conditions are met before authorizing the discussion of the remote hearings.
The remote hearing is authorized with a reasoned decree of the President of the Tax Court and is communicated at least five days prior the date of the public hearing or chamber.
In this regard, some Tax Courts have criticized that the provision does not specify how the days should be counted nor it allows the parties a minimum term to exercise their defense rights.
The hearings can be carried out in remote even just for a part of them in cases where the IT instruments and equipment of the tax justice allow so and within the limits of the technical and financial resources available.
Pursuant to paragraph 1 of Article 27 of the Decreto Ristori, in all cases when the remote discussion of the tax hearing is authorized, the Secretary of the Tax Courts must inform the parties about the time and connection settings at least three days prior to the hearing, and the minute of the hearing must report these latter data as well as the general information of the attendees and any action taken as the outcome of the hearing.
According to paragraph 2 of Article 27 of the Decreto Ristori, alternatively to the remote discussion, the controversies that should be discussed at the hearing are decided «according to casefile» provided that at least one party does insist for the discussion after submitting a specific request to be notified to the other parties of the judicial and to be deposited at least two days prior to the day of the discussion.
If the request for the public discussion has been submitted but it is not possible to set up the remote connection, the case will be decided via documents with a written discussion and the parties have at least ten days prior to the hearing for submitting final briefs and five days prior to the hearing for submitting responses to such briefs (in case of non-compliance of such terms, the case will be enrolled under a new number and will be decided at another date to be defined).
The critical issues associated to Article 27 of the Decreto Ristori
Article 27 at stake has been criticized by many professionals and ANTI – the Association of Italian Tax Practitioners – in an official statement dated 2 November 2020 – has raised its concerns about the possible violation of domestic and international provisions that guaranteeing the fundamental principles of the right of defense, the right to be heard and the right of a fair trial. For instance, the term of five days prior to the hearing (with no mention about how such days should be counted) for the communication by the Tax Court that hearing will be carried out in remote does not allow the effective right of defense provided by Article 31 of the Legislative Decree no. 546/1992. Moreover, the decision according to the casefile might be in contrast with the decision in a public hearing, provision that safeguards the right of the parties to be heard in accordance to Article 33 of the Legislative Decree no. 546/1992, implementing article 111 of the Constitution. For these and other issues, ANTI and other professionals have asked that the Decreto Ristori will be substantially emendated before being converted into law and hope that the Tax Courts, despite the measures of Article 27, will take the relevant actions for guaranteeing the right of defense.
The new ministerial decree on remote hearings
On 11 November 2020, in the wake of Article 27 of the Decreto Ristori, the Ministry of Economy and Finance (“MEF”) has finally issued the long-awaited decree (hereinafter “Decree”), which is close to publication in the Official Journal, setting up the technical-operational rules for public or chamber hearings through remote connections, and aiming at allowing the remote hearings, as required by Article 16, paragraph 4, of the law-decree 23 October 2018, no. 119, converted with amendments by Law 17 December 2018, no. 136 and Article 27 of the Decreto Ristori.
Article 2 of the Decree provides that the remote hearings shall be carried out by using the IT program Skype for Business and that, for the purposes of ensuring the right to a fair hearing, they shall be carried out in such a way to guarantee «the simultaneous, effective and reciprocal viewing of the connected users as well as the possibility of hearing what is being said ” (Article 3). The President’s decision to hold the hearing remotely is communicated by certified e-mail to the parties who, before the hearing, will receive a second communication with the link to join the remote hearing from the Registrar of the Tax Court. In case of failure of the remote connection, the President of Tax Court will suspend the hearing and, if the connection cannot be restored, will postpone the hearing providing that the parties are duly notified. Pursuant to Art. 4 of the Decree, the minute of the hearing is drafted electronically and digitally signed by the President or Judge and by the Registrar clerk.
This decree was added to that of 6 November with which the MES provided the technical-operational rules relating to: digital format for the electronic drafting and filing of the judge’s measures, digital format for drafting the hearing minutes, drafting and telematic transmission of digital documents, as well as IT digital files.
Conclusions
Substantially, Article 27 of the Decreto Ristori has provided a “forced” documental proceeding, due to the absence of the IT tools necessary for the video-hearings which, although already introduced in 2018 by Article 16 of the Law-Decree no. 119 of 23 October 2018, have effectively remained unimplemented (at least until today). Therefore, it is hoped that the tax justice (but, in general, the entire justice system) will be able to complete, in the shortest possible time, the modernization and digitization process that has now become essential and, therefore, can no longer be postponed for a modern society (in addition to the current emergency situation and economic crisis). The Decree on the technical-operational rules for carrying out the remote hearings issued by the MEF certainly represents a big step forward, but now it will be necessary to concretely implement these new rules.
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