THE WITNESS EVIDENCE: A NEW KIND OF EVIDENCE IN TAX TRIALS.
One of the most important innovations brought by the law reforming the tax trials (Law no. 130 of 31 August 2022) is the possibility for the parties to request, upon certain conditions, witness evidence.
This is an absolute novelty since the old paragraph 4 of Article 7 of Legislative Decree 546/1992 (and before that the Presidential Decree 636/1972, as amended in 1981) provided that “Oath and witness evidence are not allowed“.
The case-law reduced the scope of that prohibition by allowing the taxpayer to introduce written statements from third parties into the tax trial. By doing so this case-law aimed at ensuring a better balance between the parties (as also considered essential by the case-law of the ECHR) since the tax authorities have the power to use declarations of third parties collected during the tax audits and convey them into the tax trial through the notice of assessment.
However, the value of such statements has always been that of clues, unsuitable by themselves to determine the decision of the tax court.
The reform just introduced, on the other hand, although with a whole series of procedural and substantive requirements, now introduces the written witness evidence as proper evidence.
Witness evidence may be admitted by a Court of Tax Justice (the new name of the former Tax Commissions), of both first and second degree, “where it considers it necessary for the purposes of the decision and even without the agreement of the parties“.
The requirement of the necessity of this evidence – which is similar to Article 58 of Legislative Decree 546/1992 which sets the limits for the admissibility of new evidences in second degree trials – implies that the witness evidence represents an exceptional kind of evidence to be used only when a given circumstance cannot be otherwise proven.
The rule provides that the witness evidence shall be given pursuant to Article 257-bis of the Code of Civil Procedure, i.e. in the form of written witness statements.
Witness evidence may be requested by both parties. However, the request by the tax authorities will in practice be a very rare phenomenon since they must adequately prove their tax claims in the notice of assessments.
Witness evidence cannot be requested to overcome the evidential effectiveness of facts attested by a public official.
This new rule applies to tax trials started from 16 September 2022; however, it is not clear if it applies also to second-degree trials started after that date.
b.pizzoni@macchi-gangemi.com
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.
TO READ THE ENTIRE NEWSLETTER:
Go to link
TO READ OUR PREVIOUS NEWSLETTER OF 16 SEPTEMBER 2022:
