Posted on: 7/5/2021

    Can instant messaging texts be used as evidence in tax proceedings?


    While “at the upper floors” the question arises as to whether the prohibition on testimonial evidence in tax proceedings can be overcome, the First and Second Instance Tax Courts try to clarify whether WhatsApp can be used as evidence in tax proceedings. In the affirmative case, how can instant messaging texts be produced in court?


    In this context, of particular interest is decision No. 105 filed on April 14, 2021 by the judges of the First Instance Tax Court of Reggio Emilia: in said case the tax administration had served the tax assessment notice to the de facto director of a company which was later declared bankrupt, qualifying him as such by virtue of some “messages”, included in the Tax Audit Report, exchanged with the Company’s administrative offices and customers.


    In court, the taxpayer challenged the usability of such instant messaging texts included in the Tax Audit Report because they lacked the attestation of conformity of a notary or a public official document with respect to the originals present (only) on the telephone device of origin.


    The judges of the Tax Court of Reggio Emilia upheld the taxpayer’s request, considering the objection of the unusability of instant messaging texts to be well founded: according to the court, such “messages” cannot be a source of evidence in litigation because their authenticity cannot be verified without a controlled and certified extraction of the information from the data carrier.


    In other words, the unusability in litigation would seem to derive from the fact that, as regards the ‘instant messaging system’ type of messaging, the storage of the same takes place exclusively on the single telephone device leaving no trace, unlike common SMS messages which are stored by the telephone companies, and, therefore, without a controlled and certified extraction of the same from the data carrier.


    However, reading this ruling leaves open a series of issues and questions: can chats constitute digital proof? What evidential value do they have?


    Let us not forget that a file containing an instant messaging text can constitute digital proof, in the same way as a file containing an image, video, audio or text exchanged via e-mail. Data may in fact be processed through different media (such as computers) and stored in a space that is not under the direct control of the party.


    In subiecta materia, of fundamental importance are the so-called Electronic Identification Authentication and Signature Regulation – eIDAS and the national regulations contained in Legislative Decree No. 82 of 7 March 2005 – Digital Administration Code: while the former defines “computer document” as any content stored in electronic form, the DAC identifies it as an electronic document that contains the computer representation of legally relevant deeds, facts or data. Moreover, pursuant to article 20, paragraph 1-bis of the DAC, in the event that a digital signature is not affixed, “the suitability of the electronic document to meet the requirement of written form and its probative value can be freely evaluated in court, in relation to the characteristics of security, integrity and immodifiability“, and pursuant to Article 2712 of the Italian Civil Code any “mechanical representation of facts and things shall form full proof of the facts and things represented, if the person against whom they are produced does not deny their conformity to the facts or to the things themselves”.


    Not surprisingly, on several occasions the Court of Cassation has recognized that an electronic mail message (e-mail) or a “short message service” (SMS) constitute electronic documents that contain the computer representation of legally relevant deeds, facts or data which, although unsigned, fall within the computer reproductions and mechanical representations referred to in Article 2712 of the Italian Civil Code and therefore form full proof of the facts and things they represent, provided that the person against whom they are produced does not deny their conformity to the facts or things themselves.


    In conclusion: there is still a long way to go on the issue of the usability of “modern” evidence in tax proceedings and it is of fundamental importance to distinguish the source (SMS, e-mail, WhatsApp). Technological progress will certainly find its way into the tax proceedings as well, at least we hope so.






    DISCLAIMER: This newsletter merely provides general information and does not constitute legal advice of any kind from Macchi di Cellere Gangemi. The newsletter does not replace individual legal consultation. Macchi di Cellere Gangemi assumes no liability whatsoever for the content and correctness of the newsletter.





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