"NEWS of September 5, 2016-income assessment serves the availability of income"

Posted by on Sep 5, 2016



The Court of Cassation last July intervened with three subsequent Ordinances regarding diredditometro, confirming repeatedly what the favorite defensive mode against this type of investigation.

At the procedural level it is known that:

  • the reports leading to the selection of the taxpayer (expenses for goods and services or financial increases) allow the tax authorities to request the taxpayer questions and demonstrate economic occurrences used;
  • the request must necessarily pass through the adversarial stage quote;
  • within the contradictory the taxpayer can validly defend themselves, producing a memoir and books, illustrating all the income sources that are used or they have availability. The theme underlines the importance of the defensive line of the taxpayer, provided training in the endoprocedimentale path of the investigation, the presence of memorandum compels the Office, in the grounds of the Act its intention to deliver, to explain the reasons which led to the non-acceptance of justifications;
  • the taxpayer may also decide not to attend the hearing. In this case it is obvious that the notice of assessment may be issued on the basis of parameters available for the tax authorities, while the taxpayer remains the responsibility to explain to the judge his defensive reasons;
  • Finally the judge to evaluate the fulfilment of the respective burdens of proof and the existence or otherwise of the conditions ensure. In proceedings, of course, a last chance to the taxpayer of residual try their economic occurrences and they cater to the incomes which are contested.

The Court of appeal, in particular, in the Ordinances filed last July underlines the need for dareidonea demonstration of occurrences used to their availability, confirming the trendgiurisprudenziale as regards the c.d. "causal nexus". It is the parallel which must exist between the available funds and assets acquired or enjoyed. Over time the Supreme Court has repeatedly stated that it does not serve a timely demonstration of such availability, but you should at least try the magnitude and duration of income used. In essential terms, no analytic proof of payment made, but at least that at the time of payment the amounts used were available and older sources however no longer justified or ascertainable.

The first Ordinance to confirm what is shown is the No. 14324 filed on July 13, 2016. In the purpose of judgment clearly states that "(…) in terms of assessment of taxes on income, where the Office determines synthetically the net total income in relation to expenditure for the capital increase, the documentary evidence against admitted the responsibility of the taxpayer (…) covers only the availability of income exempt or subject to withholding tax and not demonstrating their use in purchases ". In the judgment of the Supreme Court overrule the Commission, referring to other CTR of CTR reiterating the need, inter alia, to ensure that evidence to the contrary concern not only the availability of income, but also "the amount of such income and the length of their tenure".

In its order No.  14405 filed the day after the concept is reiterated. At issue in this case of a favourable decision by the tax authorities, which criticised a CTR "rea" for not having assessed the extent of the taxpayer's income and the duration of tenure. These elements are crucial because they have "the aim of anchoring to objective facts (quantitative and temporal) the availability of such income to allow the traceability of the increased ability to pay established by the taxpayer right to such additional income, thus excluding that these have been used for purposes that are not considered for the purpose of establishing synthetic".

Finally deserves to be reported the Ordinance No. 15534, filed on July 26, 2016. In this case, again in favour of the taxpayer, the motivation is always the same: the courts cannot fail to assess the level of disposable income and its possession time. In particular, the order in the argument invokes the order the taxpayer should request that the CTR pointing out that evidence of actual use of economic resources in purchasing goods for the family, being only sufficient demonstration of resource availability over time.

by Maurizio Tozzi