"NEWS October 18, 2016-ascertainment: motivating positive impact"

Posted by on Oct 18, 2016

 

I think at least a story about three that passes under the eyes of the judges Tributaries is marked by an exception in terms of motivation of the Act to impose taxes.

I must say that, when we talk about tax this topic at the hearings, the feeling that it is, in more than a few occasions, that of sufficiency: "even this we talk about …", more or less explicitly.

It's an approach that lends itself to more than a few critics, and that certainly does not honor the work of the many tributaries that Judges, with so much passion, carry out their work.

The Supreme Court in recent years has said many, many things, in terms of motivation of the Act; and it's not granted, far from it.

The motivation is not a purely formal act of style. Motivate means indicate the facts and the legal grounds of the contested measure.

Motivation cannot be generic; cannot be delivered in a mere "provocatio ad opponendum". The taxpayer, since receipt of the Act, must be able to exercise fully and without limitation as to the right to defence; and no matter if the appeal is adequately reasoned, because the prognosis concerning the sufficiency of reasons cannot and should not be affected by the ability/skill/luck of the taxpayers to build a complete and effective redress.

Motivation cannot be contradictory. In particular, the Office cannot summon two or more conflicting requirements between them, because if it did it would build a motivation (or more). Therefore, it cannot be argued that a situation is both, evasive and elusive: because if eludo does not violate any rules, whereas if I escape I contravened an order of the law.

The motivation is static. Nor is it conceivable that the Office can integrate it in the course of the proceedings. Of course, it may well be that the Office intends to controdedurre compared to the comments made by the taxpayer in its application, but this and only this. Therefore, it is not legitimate to the work of the Office, after founding the Act of taxation – which suggests a sottofatturazione of a property being sale – on the basis of a testimonial statement, face then use IMO to support their thesis.

The motivation must be consistent to proofs deducted or deductible. It cannot be argued that the Act is based on financial investigations do not actually carried out, or carried out on persons other than the taxpayer determined without specifying the subject verified.

And, more generally, the motivation must be related to tests deducted or deductible. Thus, one can establish the Act to impose taxes on a test no stranger to legal reasons underlying the Act.

The reasoning may well refer to another place, external to it. But, if such act is not available to the taxpayer, it must be accompanied by, or leaves play the essential content. The latter prediction has to be regarded with particular rigour, to ensure that the taxpayer is not put into the actual availability of the information they need to exercise, again, a right to be heard fully and effectively. Therefore, you cannot reproduce snippets of interviews carried out by the judicial police in the course of criminal investigations; and most importantly, you can't hide those interrogators who are in favour of the taxpayer.

Of course, the taxpayer should not abuse the exception so stereotyped patterns, especially if encased in long paragraphs, heavy, redundant, are to avoid like the plague, in terms of form and substance. It is always a good exercise to put yourself in the shoes of those who are on the other side, judge or officer of the Agency, and try to think of how she'd react in similar cases, especially if the application is written in Times New Roman font 8.

by Massimiliano Tasini

DA-PROFESS