The Fisco is always obliged to confront the tax payer before issuing a deed against him (for example a tax assessment, a mortgage registration, an administrative detention, etc …).
The right to the adversarial, in fact, represents a means of protecting the taxpayer’s reasons as well as an instrument of guaranteeing the “just proceeding”, therefore, its failure to establish entails the illegitimacy of any subsequent act.
This is what was established by the Provincial Tax Commission of Milan which, with recent ruling, upheld the appeal filed by a taxpayer against a provision to suspend the reimbursement I.V.A. issued by the Milan Revenue Agency (Sentence n.4279 / 21/2017 filed in the secretariat on 20/06/2017, Chairman: Dott. Piercamillo DAVIGO, freely visible on www.studiolegalesances.it – Documents section).
In the specific case, a company had requested the Revenue Agency for the reimbursement of I.V.A. for the tax year 2011.
This request was rejected by the Office, which issued to the tax payer – and for no reason – a measure of administrative detention with subsequent suspension of the reimbursement I.V.A. due to further alleged tax claims.
Following this, the company challenged the aforementioned suspension measure before the Provincial Tax Commission of Milan, complaining about a series of defects, including the failure to establish a contradictory estimate with the taxpayer.
The judges detained the case in decision and pronounced the sentence n.4279 / 21/17 with which they fully upheld the appeal brought by the company, condemning the Office also to pay litigation costs, paid in € 20,000.00.
According to the judges of first instance, the preventive comparison tax / tax payer is essential to allow the Office to proceed with a subsequent provision “… having to believe that the failure to activate this contradictory endo-procedural involve the nullity … for violation of right to participate in the procedure, also guaranteed by art. 41, 47 and 48 of the Charter of Fundamental Rights of the European Union … “.
Therefore, in the light of the foregoing, it follows that the Tax Authority is obliged to establish a preventive contradiction with the taxpayer. EVERY SLEEPING proposes to adopt any provision against him.
Avv. Matteo Sances
Dott. Hiroshi Pisanello