Prepared by Carlo Romano and Marco Longobardi
The Supreme Court with the decision no. 9515 filed on April 6th, 2023 clarifies the aim of the Article 52, paragraph 1, last sentence of Presidential Decree no. 633/1972 (to which Article 33, paragraph 1 of Presidential Decree no. 600/1973 expressly refers) on the access, inspections and audits, according to which “access to the premises intended for the exercise of arts or professions shall be carried out before the owner of the firm or his delegate.”
In particular, the Supreme Court overturned with referral the judgment of the Tax Court of second instance (CTR Puglia no. 704/14/2015) because the judges considered illegitimate the tax of assessment. More specifically, the tax of assessment was considered illegitimate as it was based on documentation related to the tax audit and issued by the accounting firm’s employee to the Tax inspectors in the absence of the owner of the accounting firm or his delegate.
The Supreme Court ruled that the aim of article 52 is to ensure the confidentiality of the data and information of third parties with respect to the professional recipient under tax audit. In other words, the presence of the owner of the firm in the event of access to the latter’s office (“in the premises intended for the exercise of arts and professions”) is to ensure the confidentiality of the news, documents, and information of the clients – third parties with respect to the taxpayer under audit – which may assume the relevance of professional secrecy.
Whereas, if the access of the tax inspectors takes place in the office of the professional not subject to tax audit but “guardian” of accounting records, it is not necessary the presence of the owner of the firm or his delegate. Therefore, in this case, the last part of paragraph 1 of Article 52 of the mentioned Presidential Decree (aimed to protect third parties with respect to the auditee) would not apply, but rather paragraphs 5 and 10 of Art. 52 which provide for a duty to cooperate of the audited taxpayer and professional delegated to keep accounting documentation. Otherwise, the books, registers, documents and records whose exhibition is refused, even in part, cannot be taken into consideration in favor of the taxpayer in administrative or litigation proceedings.
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