Prepared by Carlo Romano, Marco Longobardi and Vincenzo Battaglia
On 17 May 2022, the Council of Ministers approved the draft law containing provisions on the justice system and tax process. The proposed reform envisages, among the main goals to be achieved by 31 December 2022, the speeding up of the tax process in order to achieve one of the objectives of the National Recovery and Resilience Plan (NRRP). Below a summary of the main features of the planned reform.
Professionalization of tax judges
The aim is to replace part-time honorary tax judges currently in service, with full-time professional judges, reducing the number of judges of first and second instance Tax Courts respectively to 126 and 450. The judicial function should, therefore, be entrusted to professional tax judges that will be recruited through a public competition as well as to the “honorary” judges who were in service as of 1 January 2022. As indicated in the explanatory memorandum, the aim of the ‘double track’ in the formation of the panels of judges is to permit the judges currently in service to work alongside the professional judges until the end of their careers. The tax judges will retire at the age of 70 to standardize the retirement age with other judiciaries.
Provisions on Tax Processes
Article 2 of the draft law introduces the following novelties in first and second instance trials
- Introduction of a solitary judge at first instance for disputes up to Euro 3,000.00.
- Provision allowing witness evidence when the tax claim is based on authentic documents valid until a compliant of forgery. In such cases, evidence is admitted only on factual circumstances other than those certified by the Public official
- Strengthening of conciliation for disputes up to Euro 50,000. For disputes subject to complaint/mediation pursuant to Article 17-bis of Legislative Decree no. 546/1992, a proposal of conciliation is provided by the Tax Court. If the party does not accept the proposal of conciliation without a justified reason, the costs of the litigation shall be borne by the same, with a possible 50% increase thereof. On the other hand, costs will be offset in the event of a successful conciliation.
News about the tax process before the Supreme Court
Hereinafter the provisions related to the tax proceeding before the Supreme Court aimed to uniform the interpretation of the law and reduce the litigation:
The so called preliminary reference in Supreme Court allows tax judges to ask the Supreme Court to enunciate a principle of law, in the presence of at least one of the following conditions: a) new question of law, b) relevant question for the matter and object of the dispute, c) difficult of interpretation due to different tax Courts guidelines and d) cases which might occur again before the judges of merit.
The second institute, whether in addition to or in substitution for the first, is the appeal in the interest of the law. In this case, the Public Prosecutor of the Supreme Court may submit a request to the First President of the Court on matters of particular importance that are new or are not in line with case-law on the merits. The interpretation of the Supreme Court will set an authoritative precedent, to which the judge on the merit will have to refer and from which may differ only providing adequate reasons for its decision.
Strengthening of Judicial self-governing body
The Tax Justice Executive Board will provide the following news:
- Inspection Board in order to ensure the proper exercise and Tax Justice;
- National case law Office (so called “Ufficio del Massimario Nazionale”) to guarantee a uniform application of the law. The abstracts of case law will be collected into a Database in order to allow to legal practitioners to follow the case law, avoiding unjustified litigation.
Positive aspects of the proposal tax reform are: i) the introduction of a ‘full-time’ Judge and ii) the witness evidence that could be decisive in some cases (i.e. in VAT frauds trials it is difficult to provide a documental evidence to be unaware of an external “criminal design”). A further news is the introduction of the preliminary reference to the Supreme Court, to speed up the Supreme Court’s decision, to standardise the interpretation of the law, in accordance with article 3 of the Italian Constitution. The proposal reform provides a preliminary assessment of admissibility of appeals by the First President of the Supreme Court that may be supported by the so called “Ufficio del Massimario” or can refer the case to the judge of the merit without giving reasoning.
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PwC TLS Avvocati e Commercialisti
PwC TLS Avvocati e Commercialisti