Feb 2


The registration of a mortgage by Equitalia on the taxpayer’s properties for a value greater than double the amount claimed by the Tax Office violates the principles of proportionality and reasonableness and is therefore illegitimate in the part exceeding the limit imposed by law.

In fact, according to paragraph 1 of the art. 77 of the D.P.R. September 29, 1973, no. 602 “After the deadline has expired … the role constitutes a title to register a mortgage on the properties of the debtor and the co-debtors for an amount equal to twice the total amount of credit for which proceeds.”

So much so is what established the Regional Tax Commission of Lazio (ruling n.5092 / 11/2017 freely visible on www.studiolegalesances.it – ​​section Documents) in partial acceptance of the encumbrance proposed by a tax payer to whom Equitalia, in the face of a debt equal to just over € 100,000.00 had registered a mortgage on various properties for a total value of more than ten times the tax payer’s debt.

The Judges of the Tax Commission therefore condemned Equitalia to reduce the mortgage on the property of the tax payer.

In the motivating part of the sentence in question, the Judges considered that the violation of the principles of proportionality and reasonableness, in the event that the mortgage exceeds twice the amount of the tax debt (and not only), materializes in the unjustified and excessive disproportion between the latter and the sacrifice that the tax payer is forced to suffer.

Moreover, this disproportion would result in an abuse of the right by the creditor Administration guilty of a distorted use of the precautionary instrument in charge of the law and previously considered legitimate to the extent that, in fact, it does not exceed the proportionality ratio established by art. 77, paragraph 1, of the D.P.R. 602/1973.

Recalling the sentence of Section III of the Court of Cassation n.6533 / 2016, the Tax Courts have highlighted, then, how the illegitimacy deriving from the violation of the aforementioned provision represents a teleological corollary of the principle of ‘due process’ guaranteed in mind of the art. 111 Cost.

The constitutional norm, in fact, must be interpreted under the lens both of the principle of ‘reasonable duration of the process’, as of the principle of ‘just process’, having to refer to such justice not only to the meritorious interest of the creditor to obtain the whole , but also to the prohibition of abuse of the procedural instruments such as to cause greater prejudice to the debtor, so, specifies the Tax Commission, “just can not be a trial result of abuse for the exercise in excess, or deviant, with respect to the protection of substantive law “.

In fact, if on the one hand, the principle of proportionality postulates the suitability of the chosen means with respect to the aim pursued in accordance with the canon of adequacy referred to the sacrifice imposed on the private (State Consortium, Section IV, 26.02.2015, n .964), on the other hand, the principle of reasonableness becomes a guiding criterion for guaranteeing operational rationality within the action of the public authorities to be evaluated, it is worth pointing out, case by case.

In any case, one adheres to the thesis that the tax collection mortgage, by no means differing from the point of view of legal effectiveness from the ordinary one, would constitute a real right of guarantee that gives the creditor the ius distrahendi and the ius praelationis, with the consequence that the discipline referred to in art. 77, of the D.P.R. n.602 / 1973, would exalt the instrumentality of the mortgage with respect to the executive action, rather than to the thesis of the precautionary nature with respect to collection (the thesis shared by the Eleventh Section of the Lazio Regional Tax Commission), such that of mortgage registration should be, more correctly, framed in the range of precautionary measures pro fisco, provided by Articles. 22 and 23, of Legislative Decree n.472 / 1997, and art. 69, of the R.D. n. 2440/1923, the fact remains that the discrepancy between the lawfulness or otherwise of the measure adopted by the Exactor resides in the tolerable sacrifice of the fiscal sphere of the taxpayer, which can only be assessed with respect to the credit claimed by the Administration.

To confirm this, just think of the application pursuant to art. 22 of Legislative Decree n.472 / 1997, in which the Agent must indicate both the type of measure requested, in the case of the seizure of the mortgage, and the assets on which it intends to adopt it, in order to allow the Tax Court to express its judgment by the value of credit protecting, on the one hand, and the asset to be subject to constraint, on the other.

Profiles of illegitimacy of the violation of the limit imposed by paragraph 1 of art. 77 of the D.P.R. n.602 / 1973, as described, should therefore induce the Inland Revenue Agency, which took over from Equitalia in the tax collection, to pay more attention to the use and requests

Dott. Carlo Mormando
Avv. Matteo Sances