Drafted by Carlo Romano, Marco Longobardi and Vincenzo Battaglia
Law no. 130/2022 related to the tax process reform provides important developments about the burden of proof and witness evidence for proceedings started after September 16th, 2022.
Burden of proof
Paragraph 5 bis of the newly reformulated Article 7 of Legislative Decree no. 546/1992 provides that “the administration shall prove in judgment the breaches disputed with the contested act” placing the burden of proof on the taxpayer only for refunds not related to tax assessments.
It also provides that the Tax Court must annul the tax assessment if the Tax Authority (hereafter the “Office”), does not prove the validity of the grounds for the tax assessment or provides contradictory evidence. This article is in line with Article 2697 of the Civil code, which states that the Office must provide timely evidence of the tax assessment. This explicit statement of the burden of proof is most likely due to the awareness that the principle has not always been followed.
Indeed, part of the Court’s past and recent case law provides that the burden of proof is on the taxpayer.
Paragraph 4 of reformed Article 7 confirms that it is not allowed to swear an oath when giving evidence before the tax Court. At the same time, it introduces the opportunity for the witness to make a written statement of evidence as per Article 257-bis of the Code of Civil Procedure.
The Tax courts, contrary to Civil courts, may introduce evidence without prior agreements with the parties involved. Any proofs provided by the witness are a possible form of evidence, which can be ordered ex officio and left to the unquestionable judgment of the tax courts.
The same evidence must, in any event, be admitted in accordance with the so called “principio dispositivo” as long as the tax court deems it relevant while exercising its investigative powers “within the limits of the facts deduced by the parties” as provided by paragraph 1 of the above-mentioned Article 7. Therefore, witness evidence may be ordered ex officio if it is related to facts represented in the process, because the judges cannot remedy failures of the parties to provide evidence. In any event, testimonial evidence may only be ordered by the tax courts if it is necessary for the decision and concerns facts not certified by the public officer, which are true until proven otherwise.
The party asking for evidence must file a formal request with the witness and the latter will provide written evidence, within a set deadline, in relation to the request admitted by the tax courts in advance.
Tax courts may order the witness to appear before the Court if the written statements are ambiguous, contradictory, incomplete or if there are doubts about the veracity of the statement.
It is not clear whether the witness evidence may also be admitted in the proceeding of second grade, although it seems possible according to Article 7 which refers to the “court of tax justice” without further distinction. In any case, second instance tax courts cannot admit new evidence, including testimonial evidence, unless it is deemed necessary for the decision, or the party proves that it has not been possible to give evidence in the previous judgment due to causes not attributable, according to Article 58 of the Legislative Decree no 546/1992.
Reformed Article 7 on the inquiry powers of tax courts, on one hand, has the merits of confirming the importance of the burden of proof on the Revenue Agency and, on the other hand, introduces a new kind evidence (witness evidence) which risks extending the length of the trial due to the complex procedure (admission of evidence, service of the witness request, possible calling of witness) and risks conflict with the so called “principio dispositivo” if the tax court decides to acquire ex officio the testimonial evidence.
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PwC TLS Avvocati e Commercialisti
PwC TLS Avvocati e Commercialisti