By decision No. 224/14/12, the Regional Tax Court of Liguria (on request by this firm) has come back to deal with the limitation period under Article 29 of Law No. 428 of 29.12.1990 and Article 11 of Legislative Decree No. 374/1990.
This is a significant ruling, exactly in the opposite direction to the well-established view of the Customs Agency.
Indeed, in spite of the combined provisions of Article 84 of the Customs Consolidation Act and Article 221 of the Community Customs Code, under which an ‘extension’ of the limitation period is only allowed when a criminal act is committed for which proceedings are instituted by the Italian Public Prosecutor’s Office, the Customs Agency has always taken a different stand on that.
More specifically, the Authorities have often purported to extend said ‘extension effect’ also to non-criminal orders, and especially to the assessment reports issued by the European Anti-Fraud Office as a result of the investigations conducted at the Community level.
Evidently, the effect ‘hoped for’ was that of finding a way to avoid the time limits imposed under the Customs Law to the benefit of the taxpayer.
The Tax Court argued instead that, to extend the limitation period under Article 29 of Law No. 428 of 29.12.1990 and Article 11 of Legislative Decree No. 374/1990, “it is not sufficient that customs officers assess a criminal situation in the abstract, it being necessary that criminal proceedings are formally instituted by filing a criminal notice with the judicial authorities prior to the expiry of the original threeyear limitation period”.
More specifically, according to the Court, the existence of serious clues of the potential criminal liability of an importer, even if inferable from official reports issued by the European Anti-Fraud Office, is not an element equivalent or comparable to a notitia criminis notified according to the terms of the Italian Code of Criminal Procedure.
The decision under examination, therefore, confirms the following:
- Article 84 of the Customs Consolidation Act and Article 221 of the Community Customs Code must be interpreted according to the their literal meaning and, accordingly,
- any notice other than a “criminal notice” under Article 331 of the Italian Code of Criminal Procedure cannot justify an extension of the statute of limitations under the Customs Law.
Although being particularly significant, the above ruling does not actually represent an absolute “novelty”. Already in 2006, the Supreme Court, giving judgment No. 19193 (substantially neglected by the Customs Agency), in a broader context:
- banned an arbitrary and extensive interpretation of the combined provisions of Article 84 of the Customs Consolidation Act and Article 221 of the Community Customs Code (which the Customs Agency already purported to invoke at that time);
- predicted the risk of “the taxpayer’s indefinite subjection to tax assessment”.
This has actually happened, at least so far.
The decision under examination, if read with an eye to the latest judgments (reviewed also in the previous issues), would indeed seem to express a renewed willingness of lower courts to safeguard the principle of the legality and compulsory nature of the Customs Law, excluding any extensive interpretation.
The actual effect of this, as of other decisions, on the already-well-established practice of the Customs Agency still remains to be assessed.
A first important test to understand the position that the authorities wish to take in respect of the decision at issue is related to the overhanging deadline for appealing to the Supreme Court.
Assumingly, any ‘desirable’ waiver of the appeal to the Supreme Court may be a sign of the Customs Agency’s willingness to comply with the interpretation criteria set out by the Tax Court.
We will of course come back to this issue once clarity has been brought about and we are in a position to understand to what extent the taxpayer can rely on the principles laid down in the decision.