With Legislative Decree no. 219 of December 30, 2023, in force as of January 18, 2024, the Italian Government introduced article 6-bis of Law no. 212 of 2000, so-called Italian Statute of the Taxpayer, which provides for the obligation of prior adversarial proceedings between the tax authority and the taxpayer for any tax and for any case.
Legislative Decree no. 219 of 2023, following a reminder by the Italian Constitutional Court that, considering the inconsistent regulatory framework, clarified that it would be necessary to extend the adversarial procedure in tax matters (Constitutional Court, Judgment no. 47 of March 21, 2023), introduced article 6-bis, entitled “Principle of adversarial proceedings”, to the Statute of the Taxpayer.
Under the previous legislative framework, there was no general right of prior adversarial procedure for the taxpayer: it was available only if and to the extent provided for by a specific rule.
At the same time, the new legislation repealed article 12, par. 7, of the Statute of the Taxpayer, which granted the taxpayer the opportunity to submit defensive pleadings within 60 days following the delivery of the tax audit report. The rule has now been “absorbed” by the new article 6-bis.
With respect to the new rules on prior adversarial procedure, the obligation to establish it applies to all acts that can be independently appealed, failing which the act may be annulled.
The procedure is as follows:
– before issuing the notice of tax assessment, the tax administration makes available to the taxpayer an outline of the act;
– the taxpayer shall be given a period of not less than 60 days to submit any counter-arguments or, upon request, to access and extract a copy of the documents in the file.
At the end of this procedure, the tax authority shall issue the notice of assessment taking into account the observations of the taxpayer and giving reasons for it by referring to the observations it does not intend to accept.
If an adversarial procedure is not established, the tax assessment issued is automatically voidable, and the so-called “proof of resistance” will not be necessary to prove that if the adversarial procedure had been established, the assessment procedure would have had a different outcome.
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