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What is the relevant legislation relating to tax administration and controversies? Other than legislation, are there other binding rules for taxpayers and the tax authority?
Italian tax law is based solely upon written sources at both national and EU levels. Among various written sources of law, the Italian Constitution is considered a primary source of law. It sets forth the rules that are directly applicable as well as the basic rules governing the approval of laws (including tax laws).
EU tax law is also applicable in Italy. Italian judges apply the law in compliance with EU law and European Court of Justice case law.
Tax treaties, as long as they are implemented by the Italian Parliament, are also applicable.
It should be noted that EU law and tax treaties set forth, in general terms, only substantive tax rules, whereas tax proceedings are governed by national rules and the Civil Procedure Code.
Among the others, the following supplementary legislative sources of tax law are noteworthy: Presidential Decree No. 600/1973 on assessment procedures, Legislative Decree No. 472/1997 on the imposition of tax penalties and Law No. 241/1990 on administrative proceedings in general.
Specific rules on tax litigation are provided by Decree No. 546/1992. According to article 1(2), tax courts will apply the specific provisions of such a decree and, to the extent compatible, the rules of the Civil Procedure Code. Also worthy of mention is Legislative Decree No. 545/1992, setting forth the basic rules governing the tax jurisdiction in Italy.
Circular letters by the Italian tax authorities are not binding on taxpayers. Taxpayers may also disregard individual pronouncements issued by the tax authorities, even if this would most likely give rise to a tax assessment. Conversely, replies by the Revenue Agency to the rulings regarding specific taxpayers on their own actual case are binding on the tax authority itself.
What is the relevant tax authority and how is it organised?
The Revenue Agency is the public authority in charge of the enforcement of all taxes (excluding customs and excise duties, and some other minor levies), competent to issue notices of assessment.
Since 1 December 2012, it has incorporated the Real Estate and Land Registry Agency.
The Revenue Agency is divided into territorial offices, namely:
- regional directorates, based in the head town of each region, responsible for the management, tax assessment, tax litigation and supervision of local offices; and
- provincial directorates, based in the main town of each province, structured with one or more local offices, namely an audit office (divided into up to three areas, according to the different types of taxpayers and different activities performed) and a legal office (which deals with litigation).
In some cases, other entities may take part in the administration of taxes; in particular, municipalities are responsible for the administration of the municipal tax on real estate properties.
Also worthy of mention is the Tax Police, which assists public prosecutors and plays an important role in verifying the correct compliance with tax laws.
Compliance with tax laws
How does the tax authority verify compliance with the tax laws and ensure timely payment of taxes? What is the typical procedure for the tax authority to review a tax return and how long does the review last?
Italy implements a self-reporting tax system that requires taxpayers to file an income tax return estimating the amount of taxes payable for the tax period.
The Revenue Agency verifies the fulfilment of tax obligations and whether a tax return is correct through the following main procedure (applicable to both income and indirect taxes):
- an initial check (on errors in the determination of the taxable income or in the calculation of the tax due or regarding tax deductions and tax credits) is carried out automatically on all tax returns, before the submission of the tax return regarding the subsequent fiscal year;
- a second ‘formal’ check (on the consistency of the tax return with the documentation kept by taxpayers, including material from the tax registers’ database) is carried out on samples of tax returns by the end of the second year following the year in which the tax return was submitted; and
- a third phase (substantive audit) is intended to rectify the individual incomes declared and to identify subjects who, although being obliged to submit the tax return, have not done so. This audit is based on all information and documents available to the Revenue Agency or acquired through access, inspections and verifications. If this audit is conducted at the taxpayer’s place of business, tax auditors can stay for no longer than 60 working days (30 days in an ordinary term plus 30 days’ extension). The officers must be authorised by way of special authorisation that is issued by the head of the tax office of their jurisdiction. Access to locations that are also used as a dwelling by the taxpayer must be authorised by the Public Prosecutor. At the end of their audit, the tax auditors must draw up the final tax report. This report may result in a notice of assessment indicating the amount of taxes to be paid. In the case of non-compliance with the procedural guarantees laid down for the protection of the taxpayer during the audit, the information illegally acquired cannot be used to determine the taxpayer’s liability.
Types of taxpayer
Are different types of taxpayers subjected to different reporting requirements? Can they be subjected to different types of review?
All taxpayers state their income through an income tax return. The tax return must be submitted by all individuals who registered an income the previous year (entrepreneurs and those practising a craft or profession must submit it even if they did not receive any income) by using the forms provided every year by the Revenue Agency.
The forms vary depending on whether the tax return concerns individuals, partnerships or corporations.
For individuals, the form to be used can be the standard tax return form or - if the declarant reports only employment or pension income - the ‘730’ form (the simplified form). Using the 730 form has considerable advantages, since it is easier to complete and does not require calculations; moreover, the taxpayer obtains the reimbursement of any tax that may have been overcharged directly with his or her payslip or in the pension instalment for July.
Individuals who possess business income and income deriving from the practice of crafts and professions must submit their tax return by 30 September of each year.
What types of information may the tax authority request from taxpayers? Can the tax authority interview the taxpayer or the taxpayer’s employees? If so, are there any restrictions?
The powers of the tax offices are exerted on taxpayers through accesses, inspections and verifications, or mainly in the offices themselves, with requests for information and documents made to the taxpayer and to third parties.
In particular, through summons or questionnaires, the Revenue Agency can ask taxpayers for data, information and possible documents necessary for verification, to be completed, signed and returned within an established deadline, usually no less than 15 days.
Through questionnaires for statistics-based tax assessment, the Revenue Agency gathers data concerning each economic activity. They do not represent a base for tax assessment for the taxpayer who completes them.
Interviews with the taxpayer or the taxpayer’s employees are often carried out during tax audits at the taxpayer’s place of business, with the limitations illustrated at question 3.
Even if there is no legal obligation to respond, pursuant to article 10 of the Taxpayer’s Bill of Rights, taxpayers must collaborate with the tax authority and act in good faith.
Moreover, the Revenue Agency can examine all corporate books and accounting records that must be kept by all subjects with an economic business relevant for tax purposes, apart from specifically provided cases of exemption.
Corporate taxpayers are also expected to have compulsory registers provided by tax laws and the Italian Civil Code. They must be kept until the deadlines for the verifications relating to the corresponding tax period have expired, even after the deadline established by article 2220 of the Italian Civil Code (ie, 10 years after the last entry) or other tax laws.
Pursuant to the Italian Taxpayer’s Bill of Rights, a taxpayer may not be requested to provide additional documents already at the disposal of the Revenue Agency.
Available agency action
What actions may the agencies take if the taxpayer does not provide the required information?
If taxpayers do not provide the Revenue Agency with the requested information:
- a penalty of between €250 and €2,000 is applicable;
- deeds, documents, accounting books and records that have not been filed on specific request of the tax officers cannot be used by taxpayers in their favour in potential tax litigation. Taxpayers can overcome this presumption only by proving that they had no responsibility in failing to provide these documents; and
- the Revenue Agency can assess the taxpayer’s position by assumptions on the basis of their profits or turnover.
Protecting commercial information
How may taxpayers protect commercial information, including business secrets or professional advice, from disclosure? Is the tax authority subject to any restrictions concerning what it can do with the information disclosed?
The Revenue Agency’s audit must be carried out confidentially and without undermining the potential business secrets of the taxpayer. However, to guarantee privacy and confidentiality, Italian tax law does not specify what duties the tax authority is under.
Especially in audits on large corporations, the control activity must not be invasive to the taxpayer’s daily business in terms of time and media exposure.
Pursuant to article 200 of the Criminal Procedure Code, lawyers and advisers cannot be obliged to disclose their taxpayers’ situations, except in the case of a criminal offence.
Limitation period for reviews
What limitation period applies to the review of tax returns?
Pursuant to article 43 of Presidential Decree No. 600 of 29 September 1973, the assessment notices for income purposes will be notified, under penalty of forfeiture, by 31 December of the fifth year following the year in which the relevant tax return was filed.
In cases of failure to file a tax return or in the event of filing of a void tax return, the tax assessment notice may be served until 31 December of the seventh year following the year in which the tax return should have been filed.
Alternative dispute resolution
Describe any alternative dispute resolution (ADR) or settlement options available?
There are several procedures under Italian tax law that define claims before an appeal is filed with the tax courts. These procedures help to mitigate the time and costs invested in a potential tax dispute and, in certain cases, allow for a reduction of tax penalties.
The key features of these procedures are analysed below.
If taxpayers pay the total amount of the assessed taxes (with relative interest) within 60 days from the service of a notice of assessment, they are entitled to a reduction of penalties of up to one-third of the minimum applicable penalty.
Voluntary disclosure allows for the correction of omissions or irregularities in the submission of the tax returns or the payment of taxes. Voluntary disclosure entails a reduction of the penalties applicable and is admitted until the deadlines provided by the law.
The Revenue Agency has the power to correct its own errors without the need for a judicial decision. The unlawful deed may be independently annulled by the tax authority or at the taxpayer’s request. However, the submission of the request does not suspend the term for filing an appeal before the tax court. The annulment can be carried out even if the judgment is pending or if the deed has already become final due to the expiry of the deadline for the filing of an appeal.
Tax settlement procedures allow the taxpayer to settle a notice of assessment before filing a tax appeal. The tax settlement procedure may be activated either by the taxpayer or by the tax authority. Taxpayers must file their written proposal of tax settlement within 60 days of the notification of the notice of assessment. The notification of the proposal interrupts the term for the filing of the tax claim for 90 days. The tax authority then summons the taxpayer to discuss the proposal within 15 days of the notification of the request. If the parties reach an agreement, the contents of the agreement are set out in a written deed, which is signed by both parties. The tax settlement is not subject to appeal and cannot be modified by the tax office. This results in a reduction of penalties of up to one-third. If an agreement is not reached, the taxpayer may file an appeal with the tax court.
Judicial settlement allows the parties to the tax proceedings to settle the dispute before a decision is issued by the tax court. It may be activated by the taxpayer, the tax office or the judge. This procedure applies to all disputes and may take place before or during the public hearing (of first or second instance). If a settlement is reached, the agreement between the parties is reported in the minutes of the hearing. If a settlement is reached beforehand, the agreement is communicated to the judge, who must declare the proceedings closed. If the agreement is considered inadmissible by the judge, they must schedule the hearing date and the proceedings will continue as usual.
In a judicial settlement, the amount of tax is set out in order to close the dispute. The taxpayer obtains a reduction of up to 40 per cent of the tax in the penalties due under the agreement, in case of settlement before the provincial tax court, or up to 50 per cent in settlement cases before the regional tax court.
For tax assessments claiming less than €50,000, taxpayers who intend to appeal must submit an application for conciliation. The request will be filed with the tax office that has issued the tax assessment. The application must contain a reasoned proposal with the recalculation of the amount of the claim. If the tax office decides not to accept the claim for a full annulment of the assessment, it will provide the taxpayer with a proposal concerning its reasoning of the controversial issues. The application is treated like a formal tax claim. If, within 90 days from the presentation of the application, the Revenue Agency does not accept the claim, the application produces the effect of presenting a formal tax claim.
Mutual agreement procedure
In double taxation cases, taxpayers can start a procedure to designate government representatives of the competent authorities to work together to resolve international tax disputes (MAP), if it is allowed by the relevant bilateral tax treaty.
If the dispute concerns a related party resident in another EU member state, taxpayers may activate a MAP procedure according to the EU Arbitration Convention.
In both cases, the pending tax litigation is suspended.
Collecting overdue payments
How may the tax authority collect overdue tax payments following a tax review?
Overdue tax collection is entrusted to a public entity (Agenzia delle Entrate-Riscossione) and companies that, within a certain territory, are entrusted on a concession basis with the task of collecting taxes, even by force, on behalf of the Revenue Agency.
Further to the service of a notice of assessment, the taxpayer is requested to pay within the next 60 days the assessed taxes, interest and penalties, irrespective of the filing of an appeal before the tax court.
If the taxpayer fails to pay, the Revenue Agency is entitled to take interim measures aimed at preserving the tax credit, such as the registration of a mortgage on real estate property of the taxpayer and the ‘administrative block’ of movable registered assets (eg, cars). Should this be the case, the Revenue Agency must notify a specific payment demand 30 or 20 days before the mortgage or the block, respectively.
Moreover, 270 days after the service of the notice of assessment, the collector agent can enforce collection procedures, such as the divestiture of movable assets (eg, bank accounts) and the seizure of real estate and moveable property.
In what circumstances may the tax authority impose penalties?
The Revenue Agency imposes monetary penalties if:
- the taxpayer has engaged in the conduct sanctioned by tax law; or
- the taxpayer’s conduct is characterised by guilt.
Additional penalties may be imposed on taxpayers to limit the exercise of a business activity, prevent participating in public tenders and suspend licences, concessions or authorisations necessary for specific businesses or activities.
How are penalties calculated?
The main penalties imply the payment of a sum of money; either a fixed sum or a percentage (related to the avoided or evaded tax). For example:
- penalties for failure to file a tax return: if a taxpayer is required to file an income tax return and fails to do so, the penalty may range from 120 to 240 per cent of the amount of unpaid tax (in any case, a minimum penalty of €250 is applicable);
- penalties for failure to file a correct tax return: the penalty may range from 90 to 180 per cent of the additional tax liability assessed (the penalty applies even if undue deductions or tax credits are exposed in the tax return); and
- penalties for failure to pay taxes on time: if a taxpayer is required to pay an amount shown on his or her tax return but fails to pay such amount within the applicable deadline, a penalty equal to 30 per cent of the amount of unpaid tax will be applied.
If the taxpayer, even at different times, commits a number of violations that, in their progression, prejudice or tend to prejudice the determination of the taxable income or of taxes, a juridical accumulative penalty is applicable. Accordingly, the Revenue Agency imposes the penalty that should be imposed for the most serious violation, increased by a quarter to half. If the violations refer to various taxes, the basic penalty is first increased by a fifth. If they concern different tax periods, the basic penalty is first increased by half or triple.
The ‘material’ accumulative penalty, which is a simple sum of the applicable sanctions, is applicable if it is less than the juridical accumulative penalty.
What defences are available if penalties are imposed?
Apart from filing an appeal before a tax court, taxpayers can submit to the Revenue Agency a brief within 60 days of the notification of the deed of imposition of the penalties in order to justify their behaviour.
For example, taxpayers can prove that the violation is not punishable since it is determined by objective uncertainty about the scope and interpretation of the applicable tax rule.
The tax office has one year to annul or confirm the deed. In the second instance, the confirmed penalty may be challenged before a tax court.
In addition, taxpayers can define the penalties by paying an amount of penalties reduced to one third. The payment must be made before the expiry of the term for filing the tax appeal. The settlement concerns only the financial penalties and the taxpayer can decide to file an appeal with regard to the assessed taxes. However, in the event of a favourable decision with regard to the taxes assessed, the taxpayer cannot request any refund of the settled penalties already paid.
In what circumstances may the tax authority collect interest and how is it calculated?
Interest on arrears is automatically calculated as a consequence of tax assessments and is equal to:
- 4 per cent per year, from the day following the one on which the payment should have been made until the notification of the notice of payment; and
- the interest rate fixed yearly by the Ministry of Economy and Finance, from the notification of the notice of payment until the date of the effective payment.
Taxpayers applying for an instalment plan should pay interest equal to 4.5 per cent per year on the amount due.
Are there criminal consequences that can arise as a result of a tax review? Are these different for different types of taxpayers?
The Revenue Agency or the Tax Police that carried out the tax audit may notify the judicial authority that they have material that may constitute a criminal offence. The judicial authority then decides whether or not to conduct the criminal investigation and prosecute the taxpayer.
The criminal procedure applicable to tax crimes is the same applicable to other criminal offences. It is based on the assignment of the burden of proof to the Public Prosecutor, who must prove that the crime has been committed. For most tax offences, the Public Prosecutor must also prove the taxpayer’s guilt. Accordingly, business entities cannot be prosecuted.
The most important criminal offences are:
- false tax return. If, on the basis of an allegedly false tax return, it turns out that, in a given fiscal year, the unpaid tax is greater than €150,000 and the amount of undeclared taxable income is higher than 10 per cent of the total positive items reported in the tax return or, in any event, higher than €3 million, the criminal penalty would consist of imprisonment for a term ranging from one to three years;
- fraudulent tax return. If a fraudulent tax return is filed by issuing an invoice for non-existent transactions, the criminal penalty would consist of imprisonment for a term ranging from one year and six months to six years; and
- fraudulent transfer of assets to impede collection of taxes. If the taxpayer commits fraudulent acts with regard to their own or others’ assets, in order to avoid payment or the collection of taxes for a total amount exceeding €50,000, the applicable punishment is imprisonment for a term ranging from six months to four years. If the amount of taxes, penalties and interest exceeds €200,000, the applicable punishment is imprisonment for a term ranging from one year to six years.
What is the recent enforcement record of the authorities?
According to the report issued in March 2018 by the Ministry of Economy and Finance, the Revenue Agency is totally successful in tax litigation in around 46.2 per cent of cases.
Third parties and other authorities
Cooperation with other authorities
Can a tax authority involve or investigate third parties as part of the authority’s review of a taxpayer’s returns?
The Revenue Agency can request financial information from banks concerning the personal accounts of the taxpayer.
It can also request information and documents from contractual counterparties and make cross-checks with third parties.
Does the tax authority cooperate with other authorities within the country? Does the tax authority cooperate with the tax authorities in other countries?
Apart from the Public Prosecutor, the Revenue Agency rarely cooperates with other domestic authorities.
Despite Italy entering into bilateral agreements for the exchange of information with many countries, cooperation with foreign tax authorities is rare.
Although the cooperation with other domestic institutions (such as the employment and social security agency INPS) or foreign tax authorities is technically possible, the Italian tax authorities have been shown to be quite non-proactive.
Voluntary disclosure and amnesties
Do any special procedures apply in cases of financial or other hardship, for example when a taxpayer is bankrupt?
Taxpayers who are in temporary situations of objective difficulties, namely that are unable to pay a registered debt as indicated in the notice of payment, can apply to the collection office to obtain a rescheduling of the debt.
Application must be submitted on paper, along with appropriate documentation indicating the temporary situation of objective difficulties. The extension may be granted up to a maximum of 120 monthly instalments (10 years). The minimum amount of instalment, without exception, is €100.
Another way to reschedule a tax debt is through tax settlement, which is applicable during insolvency proceedings.
Are there any voluntary disclosure or amnesty programmes?
Non-Italian foreign companies belonging to multinational groups with a turnover exceeding €1 billion that sell goods or provide services in the Italian territory for more than €50 million through the support of one or more Italian resident related companies may apply to the Revenue Agency for an evaluation of the risk of existence of a permanent establishment in Italy in the past open tax periods.
If the existence of a permanent establishment is assessed, the company may define, in agreement with the Revenue Agency, the income attributable to the permanent establishment related to the tax periods for which the deadline to file a tax return has elapsed. If this is the case:
- penalties are reduced to a half;
- no criminal penalty may be enforced for the failure to file the tax returns; and
- the foreign company may apply for the Italian cooperative compliance programme.
Rights of taxpayers
Rules protecting taxpayers
What rules are in place to protect taxpayers?
The Taxpayer’s Bill of Rights has been introduced into the Italian system by Law No. 212/2000.
This law, integrated with a number of executive regulations, on the one hand establishes general principles that the legislator must respect if he or she intends to introduce tax rules, such as a prohibition on analogy, the non-retrospective effects of tax rules, the simplicity of tax rules and a prohibition on introducing new taxes by means of a law decree. On the other hand, the law recognises the taxpayer’s rights to be clearly informed by the Revenue Agency, to receive tax deeds adequately motivated, to compensate his or her debts and credits, to access to ruling and to be assisted by an ombudsman.
It is worth noting that the Taxpayer’s Bill of Rights is an ordinary law, with no specific or stronger powers compared with other subsequent ordinary laws.
How can taxpayers obtain information from the tax authority? What information can taxpayers request?
Taxpayers have no right of access to documents formed and held by the Revenue Agency before being served with a notice of assessment.
However, taxpayers can file an application for a ruling in order to receive a reply by the Revenue Agency regarding their own actual cases concerning:
- the application of statutory provisions of objectively unclear interpretations;
- the valuation and fulfilment of the requirements necessary to qualify for specific tax regimes;
- the application of the abuse-of-law rule; or
- the disapplication of specific anti-avoidance rules.
The applicant must submit a tax-ruling request before the deadline for the submission of the tax return or for the fulfilment of any other tax obligations connected to the object of the tax-ruling request. The Revenue Agency must reply within 120 days of the request (90 days in the case of the first type of ruling). However, where further information is required, the Revenue Agency may request additional documentation and the answer may be delivered within 60 days from its receipt.
Where the Revenue Agency does not reply within this term, the interpretation provided by the taxpayer is considered accepted. The reply must be motivated and the interpretation provided is binding on the Revenue Agency only vis-à-vis the applicant.
Tax authority governance
Is the tax authority subject to non-judicial oversight?
The Revenue Agency has full autonomy in regulation, administration, treasury, organisation, accounts and finance within the limits set by a convention agreed every year with the Ministry of Economy and Finance, which sets the strategic aims and carries out constant monitoring of its activities.
Due to its public nature, the Revenue Agency is subject to control by the State General Accounting Office and the Court of Auditors.
Court actions (describe trial court actions in this section)
Which courts have jurisdiction to hear tax disputes?
As a general rule, the tax courts have jurisdiction over all tax disputes. Tax proceedings are aimed at verifying the procedural legality of the tax assessment and the substantive legality of the tax obligation. Disputes concerning enforcement are excluded from the jurisdiction of the tax courts. The civil courts have jurisdiction over enforcement disputes and claims for damages against the Revenue Agency. The only enforcement matters that are heard before the tax courts are disputes concerning the executive right for the collection of taxes.
The tax courts are:
- the provincial tax commission (first instance) of the territory where the tax office issuing the challenged deed is located;
- the regional tax commission (second instance), which can overrule judgments issued by the provincial tax courts located in the relevant region; and
- the Supreme Court of Cassation (third and final instance), which rules on decisions issued by the regional tax commissions, but only on legal grounds.
Lodging a claim
How can tax disputes be brought before the courts?
Article 19 of Legislative Decree No. 546/1992 provides a list of challengeable deeds. These include:
- notices of assessment;
- deeds providing for the application of financial penalties;
- notices of payments;
- registrations of mortgages on real estate assets;
- deeds related to cadastral qualifications;
- denials of tax refunds, penalties and interests not due; and
- the denial or revocation of benefits.
In this respect, it should be noted that the tax authority cannot base its defence on grounds that are different from those indicated in the challenged deed.
Litigation is initiated by filing a tax claim, which must contain:
- an indication of the tax court to which the appeal is submitted;
- the identification of the taxpayer and their legal representative;
- the taxpayer’s residence or registered office or domicile;
- an indication of the tax authority against which the appeal is filed; and
- the subject matter of the appeal, and the grounds of the appeal.
In particular, the subject matter of the appeal consists of two elements: petitum (the claim filed with the tax court) and causa petendi (the grounds in support of the claim).
The claim must be served on the tax authority that issued the challengeable deed and filed with the tax court. The notification of the appeal may occur in these ways: through the postal service, by hand, via certified email or through a public official.
The claim must be served within 60 days of the service of the deed being appealed. The taxpayer must, within 30 days from the service of the tax claim, file it with the tax court along with supporting documentation. The appeal may be filed over internet using the SIGIT software (Sistema Informativo della Giustizia Tributaria) only if the appeal has been served via certified email.
After a claim has been filed, the tax court verifies that the contribution due for participation in judicial proceedings has been paid. Contributions are only paid once and there is no cost for the subsequent filing of briefs and documents. The contribution amount depends upon the value at stake in the dispute. The maximum amount of the contribution is €1,500.
Taxpayers must file a registration note, allowing the tax court to assign a docket number to the appeal. In the absence of such note, the proceedings are not initiated.
There is no minimum threshold amount for appealing. However, for tax assessments issued by the Revenue Agency claiming less than €50,000, taxpayers who intend to appeal must submit an application for conciliation (see question 9).
Combination of claims
Can tax claims affecting multiple tax returns or taxpayers be brought together?
On the basis of the case law of the Supreme Court of Cassation, it is possible to file one single appeal regarding multiple tax assessments or different persons, only if the challenged obligation to pay taxes is the same.
Must the taxpayer pay the amounts in dispute into court before bringing a claim?
The filing of the appeal does not, per se, suspend the collection.
If the taxpayer files a tax claim with the tax court, the tax authority can request the payment of one-third of the assessed tax plus interest (but no penalties), while the litigation is pending before the first instance court.
If the first instance judgment is positive for the taxpayer, he or she has the right to be reimbursed of the interim payment.
In the opposite scenario, pending the litigation before the regional tax court, the taxpayer is requested to pay up to two-thirds of the taxes assessed and related interest and penalties.
Further to the negative judgment of the regional tax court, all the remaining amount due must be paid.
In order to avoid such interim payments, the taxpayer can ask the courts of first or second instance (even further to the appeal before the Supreme Court) to delay the assessment enforcement. The tax court will order a suspension where the payment may cause a serious damage to the taxpayer (periculum in mora) and the claim seems well-grounded (fumus boni juris).
To what extent can the costs of a dispute be recovered?
In tax proceedings, the court will require the unsuccessful party to bear the costs of litigation.
Under article 15(2) of Decree No. 546/1992, the costs of litigation can be (totally or partially) allocated equally only if both parties lose the lawsuit or for serious and exceptional reasons, to be specifically reported in the judgment.
Are there any restrictions on or rules relating to third-party funding or insurance for the costs of a tax dispute, including bringing a tax claim to court?
Court decision maker
Who is the decision maker in the court? Is a jury trial available to hear tax disputes?
The provincial and regional tax courts are made up of a panel of three judges.
Tax issues are ruled by the Fifth Chamber of the Supreme Court, which is made up of a panel of five judges.
There is no jury trial in tax disputes.
What are the usual time frames for tax trials?
- From the filing of the appeal before the provincial tax court to the relevant judgment: approximately one year.
- From the filing of the appeal before the regional tax court to the relevant judgment: approximately one year.
- From the filing of the appeal before the Supreme Court to the relevant judgment: approximately five years (longer time frames are usually experienced).
What are the requirements concerning disclosure or a duty to present information for trial?
Tax courts have the power to access and request information relating to the facts submitted by the parties. However, tax judges cannot oblige the parties to submit documents that they consider necessary to reach a decision.
The parties can submit documents to support their arguments within the deadline indicated in question 37.
What evidence is permitted in a tax trial?
Only documentary evidence is permitted in a tax trial.
Confessions and witness testimony are not admissible in a tax trial.
It should be noted that witness testimony excludes third parties’ recorded statements in the Tax Police’s minutes or the tax authority’s audit reports. Such indirect evidence can be used in judicial decisions so long as they are not the sole basis for the decision. Consistent case law has repeatedly taken this position.
For complex matters, the tax courts may request technical advice from the tax authorities, or public administrations. However, experts cannot testify, but just provide for written reports.
Similarly, the tax judge may request access to inspections, data, information and technical reports from public administrations advice.
There is no provision for translation of evidence.
Who can represent taxpayers in a tax trial? Who represents the tax authority?
In tax proceedings, the taxpayer must appoint a professional legal counsel who is authorised to represent clients in proceedings before the tax courts.
The taxpayer may appear without legal representation if they are persons entitled to assistance before the tax courts or if the amount in dispute is less than €3,000.
The Revenue Agency is represented in the proceedings by its own officers.
Publicity of proceedings
Are tax trial proceedings public?
Even if tax proceedings in Italy are held without the presence of the parties or their legal counsel, the parties may request to be allowed to illustrate their arguments orally. In particular, each party may file a request for public hearing, to be served upon the other party and filed with the tax court 10 days before the hearing date.
Burden of proof
Who has the burden of proof in a tax trial?
Generally, the burden of proof in tax litigation rests with the tax authority issuing the tax assessment.
However, where a specific presumption is mandated by law, or when the evidence is much closer to the taxpayer (eg, deductibility of costs), the burden of proof is on the taxpayer.
Case management process
Describe the case management process for a tax trial.
The briefing process is as follows:
- the claim must be filed within 60 days from the notification of the notice of assessment;
- taxpayers must file the claim and submit the documentation before the tax court within 30 days from the notification of the claim;
- the Revenue Agency must file its reply and produce the documentation before the tax court (the tax authority may also appear directly before the tax court during the public hearing) within 60 days from the notification of the claim;
- if requested, the hearing for the suspension of the notice of assessment is scheduled by the tax court;
- if requested, the public hearing is scheduled by the tax court;
- by 20 days before the date of the hearing, parties can file other documents;
- by 10 days before the date of the hearing, parties can file replies; and
- after the hearing, the tax court issues its decision (there is no deadline).
Can a court decision be appealed? If so, on what basis?
The appeal before the regional tax courts must be filed within 60 days of receiving notification of the provincial tax court’s decision. If there is no notification of the decision, the appeal before the regional tax courts may be filed within six months from the filing of the decision.
There are several requirements for appeals before the regional tax court. These include a summary of the proceedings, the subject matter of the appeal and the specific grounds for appeal. Like the appeal before the provincial tax court, the appeal before the regional tax court must contain both a petitum and a causa petendi.
The appellant may not propose requests that have not been submitted in the proceedings of first instance. An exception to this rule applies where the appellant requests a restatement of the taxes or penalties. The deductions and the documents acquired in the process before the provincial tax court are automatically submitted to the regional tax court for review. Issues and objections that are not raised in the proceedings of second instance are automatically waived.
The regional tax court’s decision may be appealed before the Supreme Court, solely on legal grounds.
An appeal before the Supreme Court may be proposed on the following grounds:
- violations of rules regarding territorial jurisdiction;
- violation and misapplication of rules of law;
- invalidity of the decision or of the proceedings; and
- a lack of examination on a decisive fact of the dispute.
The appeal before the Supreme Court must be filed within 60 days of the notification of the regional tax court’s decision. If there is no notice, the appeal may be filed with the Supreme Court within six months of the filing of the regional tax court’s decision.